Full Judgment Text
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CASE NO.:
Appeal (civil) 2106 of 2008
PETITIONER:
Kanagavalliammal & Ors.
RESPONDENT:
R. Balasubramanian
DATE OF JUDGMENT: 26/03/2008
BENCH:
DR. ARIJIT PASAYAT & P. SATHASIVAM
JUDGMENT:
JUDGMENT
(Arising out of SLP (C) No. 3426/2007)
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the order passed by a learned
Single Judge of the Madras High Court dismissing the Revision
Petition filed by the appellants under Section 115 of the Code of
Civil Procedure, 1908 (in short the \021CPC\022) .Challenge in the
Revision Petition was to the order of learned Additional Sub
Judge, Pondicherry dated 7.7.2003 in Execution Petition No. 177
of 1995 in OS No. 40 of 1981 ordering attachment of Execution
Petition schedule mentioned properties. Appellants, who were
the petitioners before the High Court, are the judgment debtors.
3. Background facts in a nutshell are as follows:
Decree was passed on 22.4.1983 in OS No. 40 of 1981. EP
No. 19 of 1984 was filed which was dismissed as not pressed on
16.4.1984. E.P.No. 101 of 1984 was closed on 10.8.1984. E.P.
No. 369 of 1986 was filed on 24.10.1986 but the same was
dismissed for default on 28.3.1994. E.A. No. 238 of 1994 was
filed on 29.4.1994 to restore the E.P. The said E.A. was
dismissed as not pressed on 31.10.1994. Subsequently, EP No.
177 of 1995 was filed on 10.11.1995. Appellants took the stand
that the Execution Petition is barred by limitation. The
respondent took the stand that the petition was within time
permitted under Pondicherry Limitation (Repeal of Local Law)
Act, 1994 (in short the \021Act\022). Reference was made under Section
4(b)(i) of the Act. The executing court accepted the stand. The
Revision Petition as noted above was filed before the High Court
which dismissed the same.
The High Court took the view that the E.P. No. 177 of 1995
which was filed on 10.11.1995 was continuation of earlier E.P.
No. 369 of 1986 and other Execution Petitions. Therefore Section
4 of the Act is not applicable to EP No. 177 of 1995.
4. Learned counsel for the appellants submitted that the date
of commencement of the Act was 1.3.1995 and 90 days time was
permitted to file the Execution Petition. E.P. No. 177 of 1995 was
filed on 10.11.1995 which is beyond the period of 90 days.
5. The controversy lies within a very narrow compass.
6. Section 4(b)(i) reads as follows:
\023(4) Notwithstanding anything contained in this
Savings Act-
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(b) any appeal or application for which the period of
limitation prescribed under the Limitation Act is
shorter than the period of limitation prescribed by
the local laws may be preferred or made,
(i) within such shorter period or within a period
of ninety days next after the commencement of
this Act, whichever is longer\024
7. Section 5(b) of the Act also has relevance and reads
as follows:
\023(5) Nothing in this Act shall,
(a) x x x x
(b) enable any suit, appeal or application
to be instituted, preferred or made, for which
the period of limitation prescribed by the local
laws expired before the commencement of this
Act\024
8. The High Court itself has noted in para 10 as
follows:
\02310. It is appropriate to refer to the following dates:
Longer Limitation French Law = 30 years
Shorter Limitation in Indian
Limitation Act = 12 years
As per the amended Act, time
limit under French Law
(22.4.1983 + 30 years) = 22.4.2013
Shorter Limitation of Indian
Limitation Act
(22.4.1983 + 12 years) = 22.4.1995
90 days from 1.3.95 or 3 months
application ought to have been
filed = 01.6.1995\024
9. The High Court is not correct in its view that E.P. No. 177 of
1995 was a continuation of earlier EP No. 369 of 1986 and other
Execution Petitions. In fact EP No.369 of 1986 was dismissed for
default on 28.3.1994 and the E.P. No. 238 of 1994, filed to
restore it, was dismissed as not pressed. Therefore, there was no
Execution Petition. For that matter no application for recalling, or
restoration of any EP was pending on the date of commencement
of the Act.
10. That being so, the High Court was not justified in its view.
The impugned order of the High Court is set aside. The E.P. No.
177 of 1995 having been filed beyond the prescribed period of
limitation was not maintainable and deserves to be dismissed.
11. The appeal is allowed without any order as to costs.