IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 15TH NOVEMBER 2011 / 24TH KARTHIKA 1933 CRP.No. 2 of 2008() ------------------- EA 168/07 IN EP 82/06 IN OS.181/1994 of MUNSIFF COURT,VARKALA .................... REVN. PETITIONER(S): PLAINTIFF/DECREE HOLDER -------------------------------------------- GOPALAKRISHNAN NAIR, S/O.CHELLAPPAN PILLAI, BHASKAR VIHAR, KURAKKANI DESOM, VARKALA VILLAGE. BY ADV. SRI.R.ANILKUMAR SRI.P.BANI RESPONDENT(S): DEFENDANT/JUDGMENT DEBTOR ---------------------------------------- THRIVIKRAMAN NAIR, S/O.ACHUTHAN PILLAI, MANIMEDAYIL VEEDU, VENKULAM, EDAVA. ADV. SRI.R.S.KALKURA FOR R1 SRI.M.S.KALESH FOR R1 SRI.HARISH GOPINATH FOR R1 SRI.V.VINAY MENON FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/11/2011, THE COURT ON 15.11.2011 PASSED THE FOLLOWING: M.L.JOSEPH FRANCIS, J. ----------------------------------------------- C.R.P. No.2 of 2008 ----------------------------------------------- Dated 15th November, 2011. O R D E R This Civil Revision Petition under Section 115 of the Code of Civil Procedure is filed by the decree holder/plaintiff in E.P.82/06 in O.S.181/94 on the file of Munsiff Court, Varkala. The respondent herein was the judgment debtor/defendant in that E.P., which was filed by the decree holder for execution of ex parte decree dated 21.10.1995. 2. The case of the plaintiff/decree holder is briefly as follows : The defendant is the sole proprietor of a business concern under the name and style, Manimedayil Financiers. The plaintiff deposited Rs.5,000/- on 8.4.1988 and Rs.1,000/- on 8.6.1988 with the defendant's bank and the defendant agreed to pay 24% interest on the deposit. Since the defendant failed to pay back the amount in spite of repeated demands, the plaintiff filed O.S.181/94 on the file of Munsiff Court, Varkala, on 26.8.1994 for realization of Rs.14,940/- together with interest at the rate of 12% per annum from the date of suit till date of decree and thereafter, at the rate of 6% per annum on the principal sum of Rs.6,000/- from the defendant and his assets. C.R.P.2/2008 2 That suit was decreed ex parte on 21.10.1995. The plaintiff/decree holder filed E.P.82/06 for execution of that decree. In that execution proceedings, the defendant/ judgment debtor appeared and filed E.A.168/07 stating that the decree is a nullity as the suit was barred by limitation. The learned Munsiff, on considering the matter found that as per the decree, the cause of action for the suit arose on 8.4.1988 and for the money suit, the period of limitation is 3 years and as the plaintiff filed the suit on 26.8.1994, after the expiry of six years two months and 15 days from the date of cause of action, and as such, the decree passed in the suit is a nullity as that suit was barred by limitation and its effect is rejection of the plaint under Order VII Rule 11(d) of Civil Procedure Code (for short, 'C.P.C.') and on the basis of that finding, the E.P. was dismissed. Against that order, the plaintiff/decree holder filed this Civil Revision Petition. 3. Heard learned counsel for the revision petitioner and the learned counsel for the respondent. 4. Learned counsel for the revision petitioner submitted that since the amount was deposited in the C.R.P.2/2008 3 defendant's bank on 8.4.1988, the period of limitation starts from the date of demand and not from the date of deposit and Article 22 of the Limitation Act, 1963 is applicable, which is three years from the date of demand. Learned counsel for the respondent submitted that in the plaint, the date of demand is not specifically stated. Learned counsel for the revision petitioner submitted that in the plaint, it is stated that the cause of action arose from 8.4.1988 and thereafter and in the decree, it is clearly stated, how the cause of action arose. Learned counsel for the revision petitioner submitted that Order VII Rule 11(d) of the C.P.C. is applicable only in the case of maintainability of the plaint and when the decree is passed, the execution court is bound by the decree. Learned counsel for the respondent generally supported the order under challenge. 5. Section 3 of the Limitation Act mandates that a court would not exercise its jurisdiction for any relief in favour of a party if the same is found to be barred by limitation. In the present case, the plaintiff deposited the amount with the bank of the defendant and the suit for recovery of that deposit made with the bank is governed by Article 22 of the Limitation Act C.R.P.2/2008 4 and the period of limitation is three years and the time from which the period begins to run is from the date of demand. In this case, in the plaint, the date of demand is not mentioned and therefore, the institution of the suit itself can be taken as demand for the payment of money. In that view of the matter, it cannot be said that O.S.181/94 is barred by limitation. 6. In the present case, the defendant has not challenged the ex parte decree by way of appeal, revision or review or taken steps to set it aside in the suit itself, by appropriate proceedings and it is not open to the execution court to refuse execution of the decree on the ground that the suit is barred by limitation. 7. The execution court cannot go beyond the decree, is the settled principle of law. In other words, it means that the executing court has to execute the decree as it stands. But, in exceptional circumstances, it can refuse to execute the decree, for example, it can refuse to execute the decree, if it is passed against a dead person. In that case, the decree itself is a nullity. The execution court can also refuse to execute the decree, if the court which passed the decree had no inherent C.R.P.2/2008 5 jurisdiction to pass the decree. 8. In the instant case, the executing court, instead of executing the decree started an enquiry as to whether the suit itself was barred by limitation. The execution court has no jurisdiction whatsoever to set aside the decree or to hold that the ex parte decree is a nullity. Therefore, the entire order passed by the executing court is consequently without jurisdiction and as such, that order has to be set aside. 9. Accordingly, this Civil Revision Petition is allowed. The order in E.A.168/07 in E.P.82/06 in O.S.181/94 on the file of Munsiff Court, Varkala is set aside and E.P.82/06 is restored to file and that court is directed to proceed with that E.P. in accordance with law. The plaintiff/decree holder will take necessary steps in that E.P. There is no order as to costs. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs (True copy) P.S. to Judge.