Full Judgment Text
REPORTABLE
2024 INSC 259
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO………………..OF 2024
(Arising out of Special Leave Petition (Civil) No.17665 of 2018)
PURNI DEVI & ANR. … APPELLANT (S)
VERSUS
BABU RAM & ANR. … RESPONDENT(S)
J U D G M E N T
SANJAY KAROL, J.
Leave Granted.
2. The present appeal arises from the final judgment and order in Civil
Revision No.33/2008 dated 09.04.2018 of the High Court of Jammu and Kashmir
at Jammu, whereby the judgment and order of Munsiff, Hiranagar, in File No.
70/Execution dated 28.11.2007 came to be affirmed, wherein the execution
application preferred by the Plaintiff herein was dismissed, being barred by
limitation.
Signature Not Verified
Digitally signed by
Jayant Kumar Arora
Date: 2024.04.02
17:43:20 IST
Reason:
Factual History
1 | C.A.No…of 2024 @ SLP(C)No.17665 of 2018
3. The genesis of the case at hand dates back to 01.06.1984, wherein the
predecessors in interest of the Appellant ( hereinafter “Plaintiff” ) filed a suit for
possession against the Respondents ( hereinafter “Defendants” ) herein. On
10.12.1986, this suit was decreed by learned Munsiff, First Class Hiranagar, in
favour of the Plaintiff, and the Defendants were directed to deliver vacant and
peaceful possession of the property to the Plaintiff. This decree was challenged by
the Respondents before the learned District Judge, Kathua, in First Appeal, which
came to be dismissed on 09.02.1990. Thereafter, the Respondents preferred a
Second Appeal before the High Court of Jammu and Kashmir which came to be
dismissed vide Order dated 09.11.2000. No further appeal was preferred.
Therefore, the decree of the learned Munsiff Court attained finality on
09.11.2000.
4. The present lis arises from the application for execution filed by the
predecessor in interest of the Plaintiff , before the learned Tehsildar (Settlement),
Hiranagar on 18.12.2000. This application came to be rejected on 29.01.2005,
whereby the learned Tehsildar observed that the Plaintiff had not applied before
the Court with appropriate jurisdiction.
5. The Plaintiff thereafter, on 03. 10.2005 preferred a fresh application for
execution before the Court of Munsiff, Hiranagar. This application resulted in the
order dated 28.11.2007, whereby, the learned Munsiff Court dismissed the
application as being barred by limitation, which has come to be confirmed vide
the impugned order.
2 | C.A.No…of 2024 @ SLP(C)No.17665 of 2018
Reasoning of the Courts below
Munsiff Court, Order dated 28.11.2007
6. The question framed for determination was whether the execution petition
was filed within time and whether the period of limitation for filing the execution
petition is 3 years or 12 years.
7. The Court after a careful perusal of Article 182 of the J&K Limitation Act
( which provides for 3 years ) and Section 48 of the Civil Procedure Code ( which
provides for 12 years, hereinafter “CPC” ), observed that, Article 182 deals with
period of Limitation for filing an execution application for the first-time seeking
enforcement of a decree. Meanwhile, Section 48 of the CPC deals with
subsequent applications and fixes an outer limit when execution remains
unsatisfied.
8. The application was held to be required to be filed within 3 years, as
required by Article 182 of the J&K Limitation Act, which would run from when
the second appeal came to be dismissed. Accordingly, the Munsiff Court,
Hiranagar, held the application to be time-barred and therefore, dismissed.
9. There was no argument or discussion about the exclusion of time period
under Section 14 of the Limitation Act at this stage.
10. The Plaintiff preferred Civil Revision No.33/2008 against the aforesaid
order which came to be dismissed vide the Impugned Order, dated 09.04.2018.
3 | C.A.No…of 2024 @ SLP(C)No.17665 of 2018
Impugned Order
11. The Impugned Order also framed the question as to whether for execution
of a decree, the application has to be filed within 12 years as prescribed by
Section 48 of the CPC or within 3 years as prescribed by Article 182 of J&K
Limitation Act.
12. Reliance was placed on a judgment rendered by the High Court in J&K
1
Bank Limited etc. v. Amar Poultry Farm wherein it was observed that
limitation for the first execution application shall be governed by Article 182 of
the J&K Limitation Act. Further reliance was placed on the judgment of this
2
Court in Prem Lata Agarwal v. Lakshman Prasad Gupta and others (2-Judge
Bench) wherein Section 48 of the CPC came to be considered. This Court
observed that Section 48 provides for a maximum time limit provided for
execution, but it does not prescribe the period within which each application for
execution was to be made.
13. The argument of the Plaintiff that time spent in pursuing the proceedings
before the Tehsildar is required to be excluded, has been recorded and rejected by
the High Court.
14. It was finally held vide the Impugned Order that the dismissal of the
execution petition is well reasoned and, therefore, cannot be interfered with.
1 AIR 2007 J&K 56
2 (1970) 3 SCC 440
4 | C.A.No…of 2024 @ SLP(C)No.17665 of 2018
However, while disposing off the revision, the Court observed that the State Code
of Civil Procedure is required to be brought to 12 years.
Submissions on behalf of the Appellant/ Plaintiff
15. Learned counsel for the Plaintiff has submitted that the reasoning of the
learned High Court that the Plaintiff had chosen a wrong forum and is not
entitled to exclusion of time runs, contrary to the law laid down by this Court
that the provisions of Section 14 of the Limitation Act, 1963 are meant for grant
of relief, where a person has committed some mistake and such provisions
should be applied in a broad manner. Furthermore, the provision of Section 14
of the Limitation Act is para materia to the provisions of Section 14 of the
Limitation Act, as applicable to the then State of Jammu and Kashmir.
16. The Plaintiff has sought to place reliance on the judgment of this Court in
3
Consolidated Engg. Enterprises v. Principle Secy, Irrigation Department (3-
4
Judge Bench) and M.P. Steel Corporation v. CCE (2-Judge Bench) wherein it
was expounded that the provisions of Section14 of the Limitation Act are to
advance the cause of justice and must be interpreted to do so rather than abort
proceedings.
17. It has been further submitted that in light of the facts of the present case,
the Plaintiff is entitled to exclusion of time consumed in pursuing their remedy
before the learned Tehsildar, in view of Section 14(2) of the Limitation Act. The
filing of the application by the predecessor of the Plaintiff before the Tehsildar
3 (2008) 7 SCC 169
4 (2015) 7 SCC 58
5 | C.A.No…of 2024 @ SLP(C)No.17665 of 2018
for implementation of the judgment and decree dated 09.10.1986 was under a
genuine bona fide belief and in good faith that the Tehsildar possess the
jurisdiction to execute decrees passed by a Civil Court.
18. In lieu of this conspectus, it has been submitted that previous recourse to a
mistaken remedy or selection of a wrong forum by the Plaintiff cannot be said to
be bereft of bona fides , due diligence or lacking in good faith.
19. Further, it is not disputed that in view of Section 105 and 112 of the Land
Revenue Act, the Court of learned Tehsildar, Settlement, has all the trappings of
a Court and thus would fall within the scope and ambit of the expression
“ Court ” for the purpose of Section14 of the Limitation Act.
20. Lastly, in view of the facts submitted above, it would be a travesty of
justice, if, on mere technicalities, the Plaintiff is deprived from reaping the fruits
of the decree.
Submissions on behalf of the Respondent
21. Learned counsel for the Respondents has vehemently opposed the stand
taken by the Plaintiff . It has been submitted that the Plaintiff is taking this plea
for the first time before this Court and did not raise the plea of Section 14 of the
Limitation Act before the Courts below.
22. It was a deliberate act of wilful disobedience at the Plaintiff 's end and the
plea of Section 14 of the Limitation Act ought to have been raised at the very
first instance.
6 | C.A.No…of 2024 @ SLP(C)No.17665 of 2018
23. It is further submitted that the Plaintiff herein has not approached the
Court with clean hands. They have concealed the fact that they did not enter
appearance in the Second Appeal and thereafter, had filed an application for
setting aside the ex-parte order, which was allowed, and only thereafter, the
second appeal was dismissed vide the impugned order. This Court in M.P. Steel
(Supra) has reiterated that ‘ due diligence ’ and ‘ good faith ’ means that the party
who invokes Section 14 is not guilty of negligence, lapse or inaction.
Issue before this Court
24. In view of the submissions raised, the issue which arises for consideration
of this Court is as to whether the period (18.12.2000 to 29.01.2005) diligently
pursuing execution petition before the Tehsildar, would be excluded for the
purposes of computing the period of limitation or not.
Analysis & Consideration
25. The relevant portion of Section 14 of the Limitation Act is extracted as
under , for ready reference:
“Section 14. Exclusion of time of proceeding bona fide in court
without jurisdiction. …
…
(2) In computing the period of limitation for any application,
the time during which the applicant has been prosecuting with due
diligence another civil proceeding, whether in a court of first
instance or of appeal or revision, against the same party for the
same relief shall be excluded, where such proceeding is prosecuted
in good faith in a court which, from defect of jurisdiction or other
cause of a like nature, is unable to entertain it. ”
….
7 | C.A.No…of 2024 @ SLP(C)No.17665 of 2018
26. The Plaintiffs have submitted that the provision of Section14 of the
Limitation Act, finds place in the Limitation Act applicable to the then State of
J&K, which has not been contested by the Respondents.
27. On a perusal of Section 14(2) of the Limitation Act, which is also
applicable to the State of Jammu and Kashmir, it is evident that it carves out an
exception excluding the period of limitation when the proceedings are being
pursued with due diligence and good faith in a Court “ which from defect of
jurisdiction or other cause of a like nature, is unable to entertain it ”.
28. The first objection raised by Defendants is that the plea of exclusion of
limitation has not been raised before the Courts below and cannot be raised at
the first instance before this Court.
29. We do not find merit in this submission, the learned High Court in
paragraph 9 has categorically recorded the submission of the Plaintiff pertaining
to the exclusion of time spent in pursuing the proceedings before the learned
Tehsildar. Therefore, it cannot be said that the plea of exclusion has been raised
for the first time, before this Court.
30. The principles pertaining to applicability of Section 14, were extensively
discussed and summarised by this Court in Consolidated Engg. Enterprises
(Supra), wherein while holding the exclusion of time period under Section 14 of
the Limitation Act to a petition under Section 34 of the Arbitration Act it was
observed:-
8 | C.A.No…of 2024 @ SLP(C)No.17665 of 2018
“ 21 . Section 14 of the Limitation Act deals with exclusion of time
of proceeding bona fide in a court without jurisdiction. On analysis of
the said section, it becomes evident that the following conditions must
be satisfied before Section 14 can be pressed into service:
(1) Both the prior and subsequent proceedings are civil proceedings
prosecuted by the same party;
(2) The prior proceeding had been prosecuted with due diligence
and in good faith;
(3) The failure of the prior proceeding was due to defect of
jurisdiction or other cause of like nature;
(4) The earlier proceeding and the latter proceeding must relate to
the same matter in issue; and
(5) Both the proceedings are in a court.”
31. This Court in Consolidated Engg. Enterprises (Supra) further expounded
that the provisions of this Section, must be interpreted and applied in a manner
that furthers the cause of justice, rather than aborts the proceedings at hand and
the time taken diligently pursuing a remedy, in a wrong Court, should be
excluded.
32. In the present case, it is not in dispute that:-
(i) Both the proceedings are civil in nature and have been
prosecuted by the Plaintiff or the predecessor in interest.
(ii) The failure of the execution proceedings was due to a defect of
jurisdiction.
(iii) Both the proceedings pertain to execution of the decree dated
10.12.1986, which attains finality on 09.11.2000.
(iv) Both the proceedings are in a court .
33. The only objection pointed out by the Respondent to the ingredients for
invocation of Section 14, is that the Plaintiff have not approached this Court
9 | C.A.No…of 2024 @ SLP(C)No.17665 of 2018
with clean hands and did not approach the Court of the Tehsildar diligently and
in good faith .
34. The judgment of this Court in M.P. Steel (Supra) discussed the phrases,
“ due diligence ” and “ in good faith ” for the purposes of invocation of Section 14
of the Limitation Act. While considering the application of Section 14 to the
Customs Act, it was observed:
10. We might also point out that Conditions 1 to 4 mentioned in the
“
Consolidated Engg. case [(2008) 7 SCC 169] have, in fact, been met
by the Plaintiff . It is clear that both the prior and subsequent
proceedings are civil proceedings prosecuted by the same party. The
prior proceeding had been prosecuted with due diligence and in good
faith, as has been explained in Consolidated Engg. [(2008) 7 SCC 169]
itself. These phrases only mean that the party who invokes Section
14 should not be guilty of negligence, lapse or inaction. Further,
there should be no pretended mistake intentionally made with a
view to delaying the proceedings or harassing the opposite party.
xxx xxx xxx
49. ……. the expression “the time during which the plaintiff has
been prosecuting with due diligence another civil proceeding”
needs to be construed in a manner which advances the object
sought to be achieved, thereby advancing the cause of justice.”
(emphasis supplied)
35. The judgments in Consolidated Engg. Enterprises (Supra) and M.P. Steel
(Supra) have been followed consistently by this Court. For instance in Sesh
5
Nath Singh v. Baidyabati Sheoraphuli Coop. Bank Ltd. (2-Judge Bench),
while holding Section 14 to be applicable to applications under Section 7 of the
Insolvency and Bankruptcy Code, 2016 and the SARFAESI Act, it was
observed:-
5 (2021) 7 SCC 313
10 | C.A.No…of 2024 @ SLP(C)No.17665 of 2018
“ 75. Section 14 of the Limitation Act is to be read as a whole. A
conjoint and careful reading of sub-sections (1), (2) and (3) of Section
14 makes it clear that an applicant who has prosecuted another civil
proceeding with due diligence, before a forum which is unable to
entertain the same on account of defect of jurisdiction or any other
cause of like nature, is entitled to exclusion of the time during which
the applicant had been prosecuting such proceeding, in computing the
period of limitation. The substantive provisions of sub-sections (1), (2)
and (3) of Section 14 do not say that Section 14 can only be invoked
on termination of the earlier proceedings, prosecuted in good faith.”
36. More recently, in Laxmi Srinivasa R and P Boiled Rice Mill v. State of
6
Andhra Pradesh and Anr. (2-Judge Bench), this Court followed the dictum in
Consolidated Engg. Enterprises (Supra) and M.P. Steel (Supra) to exclude the
time period undertaken by the Plaintiff therein in pursuing remedy under Writ
Jurisdiction, in the absence of challenge to the bona fides of the Plaintiff , in
view of Section 14.
37. No substantial averment has come on record to substantiate the claim that
the predecessor in interest of the Plaintiff approached the Tehsildar with any
mala fide intention, in the absence of good faith or with the knowledge that it
was not the Court having competent jurisdiction to execute the decree. The
object to advance the cause of justice, as well must be kept in mind.
38. We do not find the reasoning given by the learned High Court in
paragraph 9 while rejecting the plea for exclusion of time to be sustainable. On a
perusal of the record, it is apparent that the Plaintiff has pursued the matter
bonafidely and diligently and in good faith before what it believed to be the
appropriate forum and, therefore, such time period is bound to be excluded when
6 2022 SCC Online SC 1790
11 | C.A.No…of 2024 @ SLP(C)No.17665 of 2018
computing limitation before the Court having competent jurisdiction. All
conditions stipulated for invocation of Section 14 of the Limitation Act are
fulfilled.
39. Therefore, in view of the above discussion the period from 18.12.2000,
when the execution application was filed to 29.01.2005, when the prior
proceeding was dismissed, has to be excluded while computing period of
limitation, which results in the execution application filed by the Plaintiff , being
within the limitation period prescribed under Article 182 of the Limitation Act as
well, which is 3 years.
40. Consequently, the appeal is allowed. The impugned order of the High
Court dated 09.04.2018 and Munsiff Court, Hiranagar dated 28.11.2007 are set
aside. The execution application of the Plaintiff is restored to the file of the
Munsiff Court, Hiranagar for fresh consideration, in consonance with the view
on limitation which has been decided above.
41. Pending applications, if any, are disposed of. No order as to costs.
…………………………..J.
(SANJAY KAROL)
……………………………J.
(ARAVIND KUMAR)
April 02, 2024
New Delhi
12 | C.A.No…of 2024 @ SLP(C)No.17665 of 2018