IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE l3 DAY OF JULY, 2011 BEFORE THE HON’BLE MR. JUSTICE JAWAD RAHIM CRP No. 260 OF 2010 BETWEEN: SYNDICATE BANK, HAVING THEIR HO AT MANIPAL AND A BRANCH OFFICE AT INDIRANAGAR, BANGALORE, REP. BY ITS MANAGER PtIiuONER (BY SRI B.M.BALIGA, ADV.,) AND 1. JAISHREE INDUSTRIES A PARTNERSHIP FIRM AT NO.1, IRANI ROAD, CAMP AT & PST AHMEDNAGAR, MAHARASHTRA, BY ITS PARTNER HIRALAL JHAWAR 2. HIRALAL JHAWAR, NO.4, NAGARWALA ROAD, CAMP AT AHMEDNAGAR, MAHARASHTRA. RESPONDENTS (BY SRI S.J.SANGHVI & SRI MANJAPPA.V., ADVs., FOR Ri & R2) CRP FILED U/S 115 OF CPC,FILED AGAINST THE ORDER DATED 12-07-2010 PASSED IN EXNO.25051/2008 ON THE FILE OF THE XXVI ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE, (CCH 20), REJECTING THE OBJECTIONS RAISED BY THE JUDGMENT DEBTOR TO THE EXECUTIION PETITION. THIS PETITION IS COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING: ORDER The Judgment Debtor’s revision under Section 115 of Code of Civil Procedure, 1908 against the order dated 12- 07-2010 in Ex, Case No25051/2008 on the file of City Civil and Sessions Judge at Bangalore rejecting objections raised to execution of the decree. 2. Heard. 3. The material facts which needs reference are: The respondents herein, ie, MIs Jaishree Industries along with its Partner Hiralal Jhawar obtained decree in OS No. 10022/1982 in a sum of Rs3,19,000/- vide Judgment and decree dated 05-09-1985, against which the petition.r herein preferred an appeal in RFA NO35/i986, which was dismissed by considered order on 20-01-1994 confirming the iudg merit of the trial Court. Thererfter, the pebtioner 3 Judgment Debtors deposited Rs.2,36,474/- in court claiming to be in full satisfaction of the decree after deducting certain amounts payable under decree referred to above. The respondent — Judgment Debtor filed execution petitIon In the year 2008, which was objected to as being time barred. 4. But what transpired after dismissal of RFA till filing of the execution petition In 2008 is relevant for consideration. The records reveal, Petitioners - Judgment Debtors filed Misc. Pet No.718/1994 seekIng darlflcatlon for appropriation of amount deposited by the Judgment Debtors. The Decree Holder contested the petition, but it was allowed in favour of the Judgment Debtor on 25.07.1998 consequent to which the claim of the Decree Holder under decree was negated. .Aggrleved by it, the Decree Holder preferred CRP.No.1270/1999 whIch was considered on merits and allowed by order dated 03.11.1999 setting aside the trial Court’s order dated 25.07.1998 and the case was remanded. Thereafter the trial Court once again proceeded to consider the claim of the parties and dismIssed Misc.718/1994 on 17-11-2007, thereby declining to accept the contention of petitioner— ‘1 :‘ .1 4 Judgment Debtors that it had discharged Its liability under decree by paying Rs.2,36,473/-. 5. The learned trial Judge noticing the nature of decree passed and entitlement of the Decree Holders held that balance was still payable and quantified It as Rs.79222.66ps. Misc. Petition filed by Judgment Debtor was therefore, dismissed. Thus, it reached finality. Decree Holder again proceeded with the execution of the decree In its execution proceedings in Ex. Case No. 25051/2008. On being notified of It Judgment Debtors entered appearance contending that it was time barred beIng hit by Artide 136 of the Umltatlon Act, 1963. ThIs lead to contest again In Execution petition and impugned order has been passed on 12.07.2010 rejectIng objections. It Is assailed In thIs revision. 6. The learned counsel Mr. Baliga, for petitioner would contend thit as permIssible under Rule 2 of Order XXI of CPC the Judgment Debtors had deposited the amount in complIance to the decree and had furnIshed the detaIls of calculation to show that after deduction of amount payable the balance of Rs.2,36,473/- due was deposited. He would 5 further submit that decree was passed in favour of Decree Holders on 05-09-1985 and therefore, decree had to be executed within 12 years reckoning the period there from. Since the Ex. Pet No. 25051/2008 was flied in the year 2008 beyond the period of 12 years the decree become unexecutable by law. Gaining support to his contentions he relied on the decision in the case of DHAYA BHAI RANCHOD BHAI PATEL vs J.C.MILLS, GWALIOR reported Ion AIR 1987 MADHYA PRADESH 124, whereIn the learned single Judge of MP High Court held thus: “In the said decision the learned single Judge of MP High Court held ‘ For computing period of limitation Termini a quo are ample and various; and not a single one. The different occasions and situations from which the period of twelve years has to be counted Is given In the third column of the Schedule, which must be read fully and completely to give full effect to the meaning of the legislative provision contained in the first column of Article 136. Where the lower Court ignored an order in some execution stage enabling the applicant to proceed against some parties only, it was held that a fresh limitation commenced and an application for execution within 12 years from that order was within limitation and the order of lower Court was illegal.” 6 7. To reach such a conduslon the Court has noticed circumstances enumerated in CoI.3 of Article 136, which is as follows: “When the decree or order becomes enforceable or where the decree or any subsequent 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 tht an application for the enforcement or execution of a decree granting a perpetual injunction shall not be subject to any period of limitation.” 8. The second decision relied by the learned counsel is In the case of GOVINDA BHATTA vs KRISHNA BHATTA reported In 1968 KERALA 250. Considering the Issue relating to Transfer of Property Act, the Full Bench of Kerala High Court held thus: “If there was no ImpedIment to Decree Holder to execute the decree, the decree sought to be executed after the period of 12 years, is Inexecutable” 7 In other words, the proposition of law is that in the absence of any impediment in execution of the decree In any other collateral proceedings the period of limitation shall be only 12 years. 9. In third decision referred by the learned counsel in the case of RATANSINGH vs VIJAYSINGH AND OTHERS the Apex Court took a view that period of limitation starts running from the date when it become enforceable. Decree enforceable from future date or happening of certain specified events. Fifing of appeal does not affect enforceability of decree, unless stay is obtained.’ 10. On these legal propositions it is urged that in this case appeal against decree having been dismissed on 20-01-1994 the period of limitation had to be reckoned from that date. Thus execution had to be flied atieast by 2006. Since it was filed in the year 2008 it was time barred. Of course this contention is without prejudice to the ground that there was no stay in the appeal and decree was executable from 20-01-1994 itself. 8 11. In negation of it the learned counsel Mr. Sanghvi would submit that the decree passed on 05-09-1985 was inexecutabie in view of stay in RFA No.35/1986 till 20.01.1994. Thereafter also Decree Holder could not have enforced the decree as Judgment Debtor had flied Misc. No.718/1994 for recording payment made by it. He submits that order passed In the said case In favour of the Judgment Debtor was questioned by the Decree Holder and in view of the order passed by this Court In CRP No.1270/1999 the case was remanded. Thereafter, the trial Court reconsidered the issue and by order dated 17.11.2007 dismissed the petition of the Judgment Debtor declining to certify payments and then only Decree Holders could execute the decree and thus execution was flied in the year 2008. In other words, it is their contention that order passed In a proceeding Initiated under Rule 2 of Order XXI of CPC were relevant for consideration and the orders passed therein enlarged the period of time prescribed under Article 136 of the Umitation Act. 12. Mr. Baliga has In this regard referred to the circumstances enumerated in Coi.3 of Artide 136 of the 9 Limitation Act. His contention is that In the Instant case, the decree passed has not been alteied or modified In appeal action. Decree has remained as it was passed. Therefore, any order passed in proceedings under Rule 2 of order XXI of CPC is not an order referred to under Col.3 of Article 136 of Limitation Act to save limitations. 13. Mr. Baliga would further submit in first circumstances the period of limitation begins to run when decree become executable. He submits that word ‘order’ appearing in Artlde 136 refers to different circumstances. In the second circumstances he submits that the use of the word ‘any subsequent order directs any payment of money or the deliver,’ ofproperty 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,’ refers to orders passed under Rule 11 of Order XX of CPC and not to any other order like the one In this case. 14. We have to examine this issue now. 15. In the present case the decree was passed undoubtedly on 05-09-1985 and was subject to appeal till 10 20-01-1994. This period has to be excluded as undoubtedly there was a stay and decree was un-executable. Soon after dismissal of the appeal Judgment Debtors had filed Misc. No. 718/1994 for certifying payment as envisaged in Rule 2 of Order XXI of CPC. 16. Rule 2 of Order XXI of CPC, postulates: “Payment out of court to decree holder : (1) Where any money payable under a decree of any kind is paid out of the court, or a decree of any kind is otherwise adjusted In whole or in part to the satisfaction of the decree holder, the decree holder shall certify such payment or adjustment to the court whose duty It Is to execute the decree, and the court shall record the same accordingly. (2) The judgment debtor or any person who has become surety for the judgment debtor also may inform the court of such payment or adjustment, and apply to the court to issue a notice to the decree holder to show cause, on a day to be fixed by the court, why such payment or adjustment should not be recorded as certified; and If, after service of such notice, the decree holder fails to show cause why the payment or adjustment should not be recorded as certified, the court shall record the same accordingly. (2,4) No payment or adjustment shall be recorded at the instance of the judgment debtor unless- (a) the payment is made In the manner, provided In rule 1; or (b) the payment or adjustment is proved by documentary evIdence; or 11 Cc) the payment or adjustment, is admitted by, or on behalf of, the decree holder In his reply to the notice given under sub- rule (2) of rule 1, or before the court. (3) A payment or adjustment which has not been certified or recorded as aforesaid, shall not be recognIsed by any court executing the decree.” 17. Rule 2A of Order XXI of CPC, is relevant which envisages: “(2A) No payment or adjustment shall be recorded at the Instance of the judgment debtor unless- (a) the payment Is made in the manner, provided In rule 1; or (b) the payment or adjustment is proved by documentary evidence; or (c) the payment or adjustment, is admitted by, or on behalf of, the decree holder in his reply to the notice given under sub- rule (2) of rule 1, or before the court.” 18. Thus, It Is clear If the Judgment Debtor applies to Court for certifying payment out of Court to the Decree Holder payable under the decree, no payment or adjustment shall be recorded at the Instance of the Judgment Debtor unless: a) The payment Is made In the manner provided under rule (1), or 12 b) Payment or adjustment is proved by documentary evidence or payment or adjustment Is admitted by or on behalf of the Decree Holder in his reply to the notice given under sub-rule (2) of rule (1) or before the Court. Rule (3) further postulates payment or adjustment which has not been certified or recorded as aforesaid, shall not be regularised by any court executing the decree. In the Instant case, the petitioner/Judgment Debtor Bank had on its own volition, filed an application under sub rule (2) of rule (1) to record payment of money to the Decree Holder due under the decree. The executing Court has caused notice of such application the respondent/Decree Holder. It is not in dispute the respondent/Decree Holder did not admit the credence of the statement made by the Judgment Debtor regarding payment of money by It as declared in the applIcatIon. The respondent/Decree Holder denied the payment and in unequivocal terms contended that the petitioner/Judgment Debtor had not made full payment of money to them In terms of the decree. In other words, the respondent/Judgment Debtor has categorically stated that the so far, payment of Rs.2,36,474/- was not In full V ‘3 discharge of the amount due under the decree. Such dispute undoubtedly required adjudication by the executing court applying provision of Section 47 of the CPC. In the first Instance, the executing court accepted the contention of the petitioner/Judgment Debtor and allowed its Misc.No.718/1994 by order dated 25.07.1998 thereby negating the claim of respondent/Decree Holder. Aggrieved by it, they had questioned it in CRP.No.1270/1999 before this Court and this Court disposed it of on merit setting aside the order of the trial Court regarding full satisfaction by its order dated 03.11.1999 and remanded the matter to the trial Court. In the subsequent proceedings, after remand, the issue was reconsidered by the trial Court and by order dated 17.11.2007, Mlsc.718/1994 was dismissed declining to record full satisfaction. In other words, the dispute between the petitioner/Judgment Debtor and the respondent/Decree Holder as to what was the amount due and recoverable under the decree was finally determined by the trial Court on 17.11.2007. It is only from that date, In pursuance to the said order, the respondent/Decree Holder became entitled to enforce the decree to recover the balance amount. It Is material to note till such order was Jr 14 passed, the contention of the Judgment Debtor was that It has paid entire amount under the decree and nothing was payable. Hence, there was no determination of the amount due under the decree by the executing Court. Consequently, the respondent/Judgment Debtor could not have executed the decree to recover the amount earlier to 17.11.2007 in view of pendency of Misc.718/1994 to decide as to what was the amount due. The execution petition 25051/2008 was flied In the year 28808 by the respondent/Judgment Debtor to recover the amount as determined by the executing Court on 17.11.2007. Hence, the question Is as to whether that date is the date from which period of limitation under Article 136 is to be reckoned or from any earlier date. 19. The contention of Sri.Baliga, learned counsel is that the period of limitation will be saved only if the order passed alters or modifies the decree. He again refers to the circumstances enumerated In column 3 of Article 136 of the LimItation Act. It Is relevant to refer to circumstances enumerated in column 3 of Article 136. The first circumstance enumerated is: ‘41 15 (a) When the decree becomes executable The second circumstance enumerated is under clause (b) which reads: “any subsequent 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” Therefore, the second circumstance enumerated in column 3 has spelled out that the period of limitation would commence on default of Judgment Debtor to comply with “subsequent order” which directs any payment of money or delivery of property to be made at a certain date or at recurring periods. 20. Applying the said erovision to the f•••acts of this case, it is seen only on the basis of subsequent order passed by t.he trial Court, the liability of the petitioner/Judgment Debtor was determined by the executing court and from, that date, the Decree Holder became entitled to enforce the 16 said order to recover the amount from the Judgment Debtor. 21. All contentions urged to the contrary by the petitioner/Judgment Debtor are therefore rejected. In the result, the conclusion Is: The decree obtained by the respondent/Decree Holder on 05.09.1985 was Inexecutable due to the pendency of the appeal against the decree tIll 20.01.1994. This period had to be excluded. Thereafter, because the petitIoner/Judgment Debtor has filed Misc.718/1994, the decree was unsustainable till disposal of Mlsc.718/1994. As the order passed in Misc.718/1994 was set aside and case was remanded by the decision in CRP.No.1270/1999, there was no adjudication till it was disposed of on 17.11.2007. Therefore, as Misc.No.178/1994 was remanded to the trial Court and the trial Court has determined the amount payable only by order dated 17.11.2007, the Decree Holder became entitled to execute the decree only on default committed by the petitioner/Judgment Debtor to comply with the order dated 17.11.2007. 17 The execution petition No.25051 was filed In the year 2008 and therefore, It was within the period of 12 years as prescribed by Article 136 of the Limitation Act. Thus the execution petition was in time. In the result, the grounds in the revision are against the Impugned order and are rejected. The order impugned is confirmed. The respondent/Decree Holder are entitled to enforce the order dated 17.11.2007 to recover the amount determined by the executing Court. Considering the long period of time for which the respondent is deprived of recovering the amount under the cheque due to litigation created by the petitioner, the petitioner is imposed cost of Rs.2,000/-. It shall be recovered by the respondent/Decree Holder In the same execution proceedings. 3d, m. VK I