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2017 (12) TMI 1236 - HC - Indian LawsInterpretation of statute - real construction of the decree dated 21.04.1995 - maintainability of execution case - mortgage suit. Held that - It appears from Annexure-1 to the Writ Petition that it is clearly written at the top DECREE IN ORIGINAL SUIT under Order XX Rules 6 and 7 of the Code of Civil Procedure in form Schedule XLII - The decree as contained in Annexure-1 to the Writ Application has been prepared as per Form No. I & II provided under Appendix D of the Code of Civil Procedure. In the present case, what has happened is crystal clear; the mortgage suit was decreed but the decree was not drawn correctly, at this stage, the learned single Judge despite having recorded a finding that the decree is not properly worded came to a conclusion that the plaintiff Bank having not filed an application for preparation of a final decree in terms of Order 34 Rule 5 C.P.C. within a period of three years from the date of expiry of 30 days which was prescribed to the defendants for payment, an application for final decree became barred by law of limitation in terms of Article 137 of the Limitation Act, 1963. To me, it appears that there is no question of applying the law of limitation for preparation of a final decree because the plaintiff Bank was not given a preliminary mortgage decree in terms of Order 34 Rule 4 read with Form 5A of Appendix D of the Code of Civil Procedure and if the Bank was not given this opportunity to file an application for preparation of a final decree, there was no fault on the part of the Bank in not applying for preparation of a final decree. No doubt, law of limitation is based on a sound public policy but at the same time the court would not be willing to apply the rigours of the Limitation Act to defeat a just and valid claim of the Bank which has now crystalised on adjudication by a competent court of law. Applying principle of limitation in the facts of this case would amount to deprive the plaintiff Bank of the fruits of the judgment for no fault on its part. It would amount to giving undue benefit to the borrowers and the guarantors by construing a decree in original suit, as contained in Annexure-1, as a preliminary mortgage decree which is required to be issued in a title mortgage suit under Order XXXIV Rule 4 of the Code of Civil Procedure. In the present case, it cannot be said that an application for preparation of a final decree came to be barred by limitation after three years from the date of expiry of 30 days from the date of decree i.e. 21.04.1995. Since we come to a conclusion that the learned single Judge has construed Annexure-1, which is in conformity with a decree in original suit, as a preliminary mortgage decree, by adding and reading something which is not there in Annexure-1 and thereby misconstruing the decree, in favour of the plaintiff Bank to its detriment, we would hold and declare that the decree as contained in Annexure-1 is a simple money decree in terms of Order XX Rules 6 & 7 C.P.C. and it may at best be construed as if the Bank has given up its claim to satisfy the decree first from the sale proceeds of the mortgaged property. The Execution Case No. 5/1996 was maintainable and the view taken by the learned single Judge that the said execution case was non est, with all respect to the learned single Judge, cannot be upheld. Time limitation - Held that - he period of limitation prescribed for the execution of any decree (other than a decree granting a mandatory injunction) or order of any civil court as prescribed under Article 136 of the Schedule of the Limitation Act, 1963 would apply in the facts of the present case. This provides 12 years period of limitation and, therefore, a decree dated 21.04.1995 was executable for a period of 12 years from the date of expiry of 30 days with effect from 21.04.1995, therefore, an application under Section 31A of the DRT Act, 1993 filed on or before 21.05.2007 would not be barred by limitation - In the present case, the O.A. (Ex.) No. 15/2006 was filed by invoking Section 31A of the DRT Act on 06.03.2006, therefore, an application under Section 31A of the DRT Act was filed well within the period of limitation. Appeal allowed.
Issues Involved:
1. Nature of the decree and its executability. 2. Applicability of Section 31-A of the DRT Act. 3. Limitation period for filing an application under Section 31-A of the DRT Act. 4. Effect of non-substitution of a deceased judgment debtor. 5. Plea of res judicata. 6. Non-disclosure of previous execution case. Detailed Analysis: 1. Nature of the Decree and Its Executability: The court examined whether the decree dated 21.04.1995 was a preliminary mortgage decree or a simple money decree. The learned single Judge held it to be a preliminary mortgage decree, which is not executable unless a final decree is drawn. However, the appellate court found that the decree was not in the form prescribed for a preliminary mortgage decree under Order XXXIV Rule 4 of the Code of Civil Procedure. It was instead a simple money decree under Order XX Rules 6 & 7, making it executable. The court emphasized that the decree was prepared incorrectly due to the court's error and not the plaintiff Bank's fault. Thus, the decree was executable, and the Execution Case No. 5/1996 was maintainable. 2. Applicability of Section 31-A of the DRT Act: The learned single Judge held that even a preliminary decree, if capable of quantification and still subsisting, could be enforced under Section 31-A of the DRT Act. The appellate court agreed, stating that the decree dated 21.04.1995 was a simple money decree and thus enforceable under Section 31-A. The court emphasized that the decree was valid and enforceable, and the plaintiff Bank had a right to file an application under Section 31-A. 3. Limitation Period for Filing an Application under Section 31-A of the DRT Act: The learned single Judge held that the application under Section 31-A was barred by limitation, as it was filed beyond three years from the date of the decree. However, the appellate court disagreed, stating that the limitation period for executing a decree is 12 years under Article 136 of the Limitation Act, 1963. Since the application under Section 31-A was filed within 12 years from the date of the decree, it was not barred by limitation. 4. Effect of Non-Substitution of a Deceased Judgment Debtor: The learned single Judge concluded that the estate of the deceased judgment debtor was represented by other parties on record, making the certificate valid. The appellate court did not find any error in this conclusion, noting that the non-substitution did not render the decree a nullity. 5. Plea of Res Judicata: The learned single Judge held that the dismissal of the execution case in default did not operate as res judicata. The appellate court agreed, stating that the dismissal in default did not bar the plaintiff Bank from filing a subsequent execution application. 6. Non-Disclosure of Previous Execution Case: The learned single Judge found that the non-disclosure of the previous execution case did not amount to fraud or misrepresentation that would vitiate the certificate. The appellate court concurred, noting that successive execution applications are maintainable within the limitation period. Conclusion: The appellate court set aside the judgment of the learned single Judge, holding that the decree dated 21.04.1995 was a simple money decree and executable. The application under Section 31-A of the DRT Act was filed within the limitation period and was maintainable. The Letters Patent Appeal was allowed, and the writ application was dismissed.
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