Supreme Court answers whether the period of limitation for filing execution petition is 3 years or 12 years

The appellant (hereinafter "plaintiff”) filed a suit against the respondents (hereinafter “defendants”) which was decreed in favour of the plaintiffs by Ld. Munsiff, First Class. The defendants appealed against the order but lost in the First Appeal. They preferred a Second Appeal before the High Court of Jammu and Kashmir which also came to be dismissed. No further appeal was preferred. Therefore, the decree in favour of the plaintiff was confirmed.

The plaintiffs filed execution proceedings before the learned Tehsildar (Settlement), Hiranagar which was rejected as it was not filed before the appropriate jurisdiction.

The plaintiff thereafter preferred a fresh application for execution before the Court of Munsiff.

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 three years or twelve years.

The Court observed that Article 182 of the J&K Limitation Act (which provides for three years, deals with the period of Limitation for filing an execution application for the first time, seeking the enforcement of a decree). Meanwhile, Section 48 of the Civil Procedure Code (which provides for twelve years, hereinafter “CPC”) deals with subsequent applications and fixes an outer limit when execution remains unsatisfied.

According to the Court, the application was held to be required to be filed within three years, as required by Article 182 of the J&K Limitation Act, from when the second appeal came to be dismissed. Accordingly, the Munsiff Court held the application to be time-barred and therefore, dismissed it.

The plaintiff preferred an appeal against the aforesaid order.

In the appeal proceedings, the High Court framed the question:

“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.”

After hearing the parties and perusing the documents, the Court recorded and rejected the argument of the plaintiff that the time spent in pursuing the proceedings before the Tehsildar should be excluded. The Court dismissed the appeal vide the impugned order.

This was challenged before the Supreme Court.

The plaintiff submitted that they made an honest mistake and had genuinely and in good faith believed that the Tehsildar possessed the jurisdiction to execute decrees passed by a Civil Court. It was the plaintiffs’ case that while calculating the time for limitation, the plaintiffs are entitled to exclude the time it took in the wrong forum and the same is in consonance with the law laid down by this Court. Moreover, the provisions of Section 14 of the Limitation Act, 1963 provide that where a person has committed some mistake, the provisions of the Limitation Act should be applied in a broad manner.

The 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 and it would be a travesty of justice, if, on mere technicalities, the plaintiff is deprived of reaping the fruits of the decree.

It was the respondent's case that the plaintiff had not approached the court with clean hands. The plaintiff had failed to disclose that they did not enter any appearance in the Second Appeal. The matter was decreed ex-parte and the plaintiffs later filed an application for setting aside the ex-parte order, which was allowed and later dismissed vide the impugned order. The respondents further submitted that ‘due diligence’ and ‘good faith’ means that the party who invokes Section 14 is not guilty of negligence, lapse or inaction.

The respondent pointed out that the plaintiff is taking the plea for exclusion of the time taken before the wrong forum, for the first time before this Court and has not raised the plea of Section 14 of the Limitation Act before the courts below. The plaintiffs ought to have raised the plea of Section 14 of the Limitation Act at the very first instance.

The Court considered the issue as to whether the period spent in diligently pursuing the execution petition before the Tehsildar would be excluded for the purposes of computing the period of limitation or not.

The Court perused Section 14(2) of the Limitation Act, which is also applicable to the State of Jammu and Kashmir, and observed 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.”

The Court found no merit in the defendant's argument that the exclusion of limitation was raised at the first instance before the Supreme Court as the learned High had recorded the submission of the plaintiff pertaining to the exclusion of time spent in pursuing the proceedings before the learned Tehsildar.

On a perusal of all the records, the Court found that the plaintiff has pursued the matter bonafidely and diligently and in good faith before what it believed to be the appropriate forum. The Court opined that therefore, such time period is bound to be excluded when computing limitation before the Court having competent jurisdiction. All conditions stipulated for invocation of Section 14 of the Limitation Act were fulfilled.

The Court also rejected the defendant's contention that the plaintiff has not approached the Court with clean hands, as there was no averment on record to substantiate the claim that the plaintiff approached the Tehsildar with any mala fide intention or with the knowledge that it was not the appropriate court having competent jurisdiction to execute the decree.

The Supreme Court allowed the appeal and held the prior proceeding has to be excluded while computing the 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 three years.

The Court held:

“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.”

The Court restored the execution application of the Plaintiff to the Munsiff Court, for fresh consideration.

About the authors: Mahua Roy Chowdhury is the Managing Partner of Royzz & Co. Jahnavi Singh is a Litigation Associate at Firm.