C.R.No.2424 of 2006 (O&M) 1 In the High Court for the States of Punjab and Haryana at Chandigarh. Decided on April 19,2010. Karam Chand son ofWalaiti Ram through his LR Vijay Kumar --Petitioner vs. Dharam Chand son of Walaiti Ram (dead) through his LRs Kiran and another --Respondents. CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.Manohar Lall,Advocate,for the petitioner Mr.Sarju Puri,Advocate, for the respondents. Rakesh Kumar Jain, J, (Oral) A few skeletel facts to unfold the dispute between the parties are required to be noticed:- Parties to the lis were real brothers. Dharam Chand (since deceased) filed an application for eviction against his brothers, Kishan Chand and Karam Chand (since deceased) in the Court of learned Rent Controller, Nawanshahr under Section 13 of the East Punjab Rent Restriction Act,1949 (hereafter referred as 'the Act'), on the ground of non- payment of rent and also for materially diminishing the value and suitility of the demised premises. Learned Rent Controller,Nawanshahr vide his order dated 8.11.1988 allowed the ejectment petition and directed that Dharam Chand C.R.No.2424 of 2006 (O&M) 2 (since deceased) be put in vacant possession of the shop in dispute by 30.1.1989. Thereafter, said Dharam Chand filed an execution application on 06.8.1997. However, in the month of June/July,1998, Dharam Chand died whereas Karam Chand died prior to him. Legal representatives of Dharam Chand were brought on record, whereas legal representative of Karam Chand were not brought on record. The petitioner Vijay Kumar is the son of Karam Chand (since deceased) who allegedly came to know about the execution application on 25.3.2003 when warrant of possession was served upon him. He then filed objections against the order of warrant of possession on the ground that the execution is not maintainable against a dead person and that a civil suit involving the question of title on the basis of a Will alleged to have been executed by Jamuna Devi (sister of the parties to the lis) in favour of Karam Chand regarding the property in dispute is also pending. He raised objection that the excecution application is not maintainable being not within limitation as according to him, the limitation was three years in such like cases as per Article 137 of of the Limitation Act,1963 (for short Act of 1963) and since the execution application is admittedly filed on 06.8.1997 in respect of the ejectment order dated 8.11.1988, therefore, the same was barred by limitation. However, the learned Civil Judge (Senior Division), Nawanshahr, dismissed the objections vide her order dated 27.3.2006. Hence, the present revision petition has been filed. The only argument raised by learned counsel for the petitioner is that the Court below has erred in entertaining the execution application after a period of three years because there is no provision under the Act about limitation for executing the order of the learned Rent Controller and C.R.No.2424 of 2006 (O&M) 3 in that situation, Article 137 of the Act, 1963 would apply which provides limitation of three years in case there is no limitation provided in any Statute. He further submits that the order of learned Rent Controller is equal to an order passed under Section 31 and 32 of the State Financial Corporation Act, 1951, in which there is no limitation provided for execution of the order passed and thus the limitation would be three years. In this regard, learned counsel for the petitioner has relied upon a decision of the Apex Court in the case of Maharashtra State Financial Corporation Vs. Ashok K. Agarwal & Ors. 2006 (2) R.C.R.(Civil) 316. On the other hand, learned counsel for the respondents has submitted that as per Section 17 of the Act, order passed under Sections 10,13 and 15 of the Act, would be a decree and shall have to be executed as such. He further submits that admittedlly, the application has been filed within 12 years from the date of order of eviction. Therefore, Article 136 of the Act of 1963 shall apply and not Article 137 of the Act of 1963, as suggested by learned counsel for the petitioner. In this connection, learned counsel has relied upon some decisions namely., Padam Parshad Vs.Dip Chand and others 1957 P.L.R.24 ; Om Parkash Jain Vs. Hans Raj 1994 (2) R.C.R.(Rent) 599; Kashi Ram Vs. Rakesh Arora, AIR 1987 Supreme Court 2230 and Manohar S/o Shankar Nale and others Vs. Jaipalsing S/o Shivlalsing Rajput and others 2008 (1) R.C.R.(Civil) 220. I have heard learned counsel for both the parties and perused the record with their assistance. In order to appreciate the controversy involved, Section 17 of the Act, needs to be noticed, which reads as under:- C.R.No.2424 of 2006 (O&M) 4 17.Execution of orders “17.The effect of section 17 of the East Punjab Urban Rent Restriction Act,1949 is that execution of orders passed under sections 10,13 and 15 of the Act are to be treated as ordinary execution proceedings as if they were ordinary decrees of civil Courts, and that both the ordinary procedure and the ordinary rules as to appeals would apply”. Similarly, Articles 136 and 137 of the Act of 1963 are required to be reproduced:- 136. For the execution of any : Twelve years [When] the decree decree ; (other than a decree : or order becomes enforceable or granting a mandatory injunction) :where the decree or any subsequent or any order of any civil court. : order directs any payment of money : or the delivery of any property to be : made at a certain date or at recurring : periods, when default in making the : payment or delivery in respect of : which execution is sought, takes : place: Provided that an application : for the enforecement or execution : of a decree granting a perpetual : injunction shall not be subject to : any period of limitation. 137.Any other application for :Three years When the right to apply C.R.No.2424 of 2006 (O&M) 5 which no period of limitation is : accrues. provided elsewhere in this : division. Learned counsel for the petitioner has argued that in the Act, there is no limitation provided for the purpose of execution of order of the learned Rent Controller and though it may be called a decree in legal fiction yet it is not a decree. The entire emphasis has been laid by the learned counsel for the petitioner upon the judgment of the Apex Court in the case of Maharashtra Financial Corporation (Supra) in which the order was passed under Section 31 of the State Financial Corporation Act, 1951. The facts of that case were that Maharashtra State Financial Corporation (hereinafter referred to as' the Corporation') had sanctioned a loan of Rupees Five lakhs in favour of M/S Crystal Marketing Private Limited on 14th November, 1978. The respondents stood surety for the repayment of loan amount but the borrower company failed to repay. Ultimately, the Corporation served a legal notice dated 08.3.1983 calling upon the borrower to repay the entire amount due. On 25.10.1983, the Corporation moved an application under Sections 31 and 32 of the State Financial Corporation Act, 1951 in the Court of the District Judge, North Goa, Panaji and prayed for an order of sale of the hypothecated property of the borrower company so that the sale proceeds could be appropriated towards meeting the outstanding liability of the borrower towards the appellant. On 11.6.1990, the attached properties of the borrower company were put to sale. Because there was a shortfall in the amount realized on sale of the hypothecated property, the appellant Corporation sent notice on 27.12.1991 to the sureties i.e. the respondents in this appeal. On 2.1.1992 the C.R.No.2424 of 2006 (O&M) 6 appellant- Corporation filed an application under Section 31 (1) (aa) of the State Financial Corporation Act, 1951 against the respondetns for taking steps of recovery of the amount due, who took various objections against the application and prayed that application was barred by limitation. The learned Addl.District Judge vide his order dated 16.4.1994 upheld the objection regarding the application being barred by limitation, which was accordingly dismissed. The appeal filed by the corporation was also dismissed by the High Court on 22.7.1998. The Corporation went in appeal before the Supreme Court. The argument raised before the Supreme Court by the Corporation was that the matter is covered under Article 136 of the Act of 1963 as the order passed under Section 31 of the State Financial Corporation Act,1951 was a decree of the Civil Court. Therefore, limitation was 12 years and not three years. Dealing-with the aforesaid arguments of learned counsel, the Apex Court held that there is no period of limitation prescribed in sub-section 31 (b) to make that application but it should be done within limitation prescribed by the Schedule to the Limitation Act and on this analogy, after referring to Section 32 of the State Financial Corporation Act, 1951, it was held that order passed under Section 32 is not a decree. The Apex Court dismissed the petition filed by the Corporation holding that period of limitation would be three years and not twelve years. In the judgment of this Court in the case of Padam Parshad (Supra) relied upon by learned counsel for the respondents, this Court interpreted Section 17 of the Act and held that execution of orders passed under Sections 10,13 and 15 of the Act are to be treated as ordinary execution proceedings as if they were ordinary decrees of civil Courts and C.R.No.2424 of 2006 (O&M) 7 that both the ordinary procedure and the ordinary rules as to appeals would apply. In the case of Om Parkash Jain (Supra), a similar dispute was before the Delhi High Court as to whether the order passed by the Rent Controller is executable as a decree of the civil court and the limitation would be three years or twelve years. Delhi High Court has held that limitation would be twelve years and not three years to which article 136 would apply and not article 137. In Case of Kashi Ram (Supra), the Apex Court held that “the basic question in the instant case as we have noted from the facts of the case is that the decree for eviction under the Rent Act was passed in October,1960 and the appeal against the same was dismissed in October 1961 by the Tribunal. Thereafter an application was made on May,1962 for permission under S. 19 of the Slum Act as it then stood was dismissed in March,1963. Thereafter, no action was taken up to 1978. when in 1978, action was initiated by filing second application under the Slum Act, 12 years from the dismissal of the application under the Slum Act had passed and the decree had become barred by Limitation. Article 136 of the Limitation Act, 1963 provides that a decree can be executed within 12 years from the date on which it became executable. Decree passed by the Rent Controller even if it was not executable and enforceable unless permission under the Slum Act had been taken, which as noticed before was not the position in law the steps for such permission had become barred. Steps for filing the application under the Slum Act were not taken on refusal of the first application within 12 years thereof. It is apparent therefrom that the execution of the decree for eviction which was passed on 15th October, 1960 became time barred on 14th of October, 1963 C.R.No.2424 of 2006 (O&M) 8 under Article 182 of the Indian Limitation Act, 1908 as it stood at that time. Under Section 31 (a) of the 1963 Limitation Act, the provisions of the 1963 Limitation Act, would not be availed of in respect of an application for which the period of limitation had expired before the commencement of the 1963 Limitation Act, that isto say,1-1.64. But even if Art. 136 of the Limitation Act, 1963 was attracted it had become barred after 12 years from the date of the decree i.e. 15th October,1960”. In Manohar S/o Shankar Nale and others (Supra), the Supreme Court has held that “Limitation to execute the decree is 12 years when it becomes enforceable” After hearing the learned counsel for the parties, I am of the considered opinion that in case where the order is passed either under Sections 10,13 and 15 of the Act, it would be executed as an ordinary civil court decree and all the objection of execution would be available to the executor and the objector under Section 31 of 1908 Act. Since it was a decree, therefore, limitation would be 12 years as per Article 136 of the Act and not 3 years as per Article 137 of the Act. In view of the above discussion, I do not find any error in the order of the learned executing Court. Hence, this Civil Revision is hereby dismissed, however, with no order as to costs. April 19,2010 (Rakesh Kumar Jain) RR Judge