KANAGAVALLIAMMAL AND ORSversusR. BALASUBRAMANIAN

                                  [2008] 5 S.C.R. 511

_.__.__
                         KANAGAVALLIAMMAL AND ORS.                          A
                                           II.
                               R. BALASUBRAMANIAN
                           (Civil Appeal No. 2106 of 2008)
                                  MARCH 26, 2008
                                                                            B
  .,,           [DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.]

                  Execution - Limitation - Execution Petition (EP) filed
             beyond prescribed period of /imitation - Maintainability of -
             Held: Not maintainable - Contention that it was continuation c
             of earlier EPs not tenable, as one EP filed earlier was
             dismissed for default and another was dismissed as not
             pressed and as such no application for recalling or restoration
             of any EP was pending on the date of commencement of the
             Act- Pondicherry Limitation (Repeal of Local Laws) Act, 1994
                                                                             D
             - s.4(b)(i).
        "'
       _,.
                  On 22.4.1983, a decree was passed. In 1984,
             Execution Petition was filed which was dismissed as not
             pressed. In 1986, another EP was filed but the same was
             dismissed for default on 28.3.1994. EA was filed on E
             29.4.1994 to restore the E.P. The said EA was dismissed
             as not pressed on 31.10.1994. Subsequently EP No.177
             was filed on 10.11.1995. The appellant-Judgment debtor
             took stand that EP was barred by limitation.
                  The respondent's contention that the EP was within        F
             time permitted under Pondicherry Limitation (Repeal of
       :,i
             Local Laws) Act, 1994 was accepted by the Executing
   '         Courts. Appellant filed revision before the High Court.
                   The High Court took the view that the E.P. No. 177 G
             which was filed on 10.11.1995 was continuation of earlier
             E.P. filed in 1986 and other Execution Petitions. Therefore
             s.4 of the Act is not applicable to EP No. 177 of 1995.
       .j
                  In appeal to this Court, appellant contended that the
                                         511                                H
    512       SUPREME COURT REPORTS                 [2008) 5 S.C.R.


A   date of commencement of the Act was 1.3.1995 and 90               -+ -
    days time was permitted to file the Execution Petition. E.P.
    No. 177 of 1995 was filed on 10.11.1995 which was beyond
    the period of 90 days.
          Allowing the appeal, the Court
B
        HELD: The High Court is not correct in its view that
   E.P. No. 177 of 1995 was a continuation of earlier EP No.
 · 369 of 1986 and other Execution Petitions. In fact EP
   No.369 of 1986 was dismissed for default on 28.3.1994
c and the E.P. No. 238 of 1994, filed to restore it, was
   dismissed as not pressed. Therefore, there was no
   Execution Petition. For that matter no application for
   recalling, or restoration of any EP was pending on the
   date of commencement of the Act. E.P. No. 177 of 1995
   having been filed beyond the prescribed period of
D limitation was not maintainable and deserves to be
   dismissed. [Paras 9,10] [514-H; 515-A-B]
        CIVIL APPELLATE JURISDICITON : Civil Appeal No.
    2106 of 2008.
E        From the final Judgment and Order dated 15.11.2006 of
    the High Court of Judicature at Madras in CRP No. 1110 of
    2003.
          V. Krishnamurthy, Senthil Jagadeesan for the Appellants.
F         The Judgment of the Court was delivered by
          DR. ARIJIT PASAYAT, J. 1. Leave granted.
        2. Challenge in this appeal is to the order passed by a
  learned Single Judge of the Madras High Court dismissing the
G Revision Petition filed by the appellants under Section 115 of
  the Code of Civil Procedure, 1908 (in short the 'CPC')
  .Challenge in the Revision Petition was to the order of learned
  Additional Sub Judge, Pondicherry dated 7.7.2003 in Execution       I
                                                                      ~
  Petition No. 177 of 1995 in OS No. 40 of 1981 ordering
H attachment of Execution Petition schedule mentioned properties.
               KANAGAVALLIAMMAL AND ORS. v. R                      .513
            BALASUBRAMANIAN [DR. ARIJIT PASAYAT, J.]

~-
        Appellants, who were the petitioners before the High Cqurt, are   A
        the judgment debtors.    ·          ·

             3. Backgroundfacts .in a nutshell are as follows:
              Decree was passed on 22.4.1983 in OS No. 40 of 1981.
        EP No. 19 of 1984 was filed which was dismissed as not B
        pressed on 16.4.1984.
                       .       '
                                  E.P.No. 101 of. 1984  .
                                                          was closed on
        10.8.1984. E.P. No. 369 of 1986 was filed on 24.10.1986 but

"       the same was dismissed for default on 28.3.1994. E.A. No. 238
        of 1994 was filed on 29.4.1994 to restore the E.P. The said
        E.A. was dismissed as not pressed on 31.10.1994.                  c
        Subsequently, EP No. 177 of 1995 was filed on 10.11.1995.
        Appellants took the stand that the Execution Petition is barred
        by limitation. The respondent took the stand that the petition
        was within time permitted underiPondicherry Limitation (Repeal
        of Local Law) Act, 1994 (in short the 'Act').Reference was made
                                                                         D
        under Section 4(b)(i) of the Act. The executing c.ourt accepted
  ~     the stand. The Revision Petition as noted above was filed before
 .;,
        the High Court which dismissed the same.
             The High Court took the view that the E.P. No. 177of1995
        which was filed on 10.11.1995 was continuation ofearlier E.P.     E
        No. 369 of 1986 and other Execution Petitions. Therefore
        Section 4 of the Act is not applicable to EP No. 177 of 1995.
             4. Learned counsel for the appellants submitted that the
        date of commencement of the Act was 1.3.1995 and 90 days
        time was permitted to file the Execution Petition. E.P. No. 177   F
        of 1995 was filed on 10.11.1995 which is beyond the period of
  ').   90 days.
             5. The controversy lies within a very riarrow compass.
             6. Section 4(b)(i) reads as follows:                         G

             "(4) Notwithstanding anything contained in this Savings
             Act-
             (b) any appeal or application for which the period of
             limitation prescribed under the Limitation Act is shorter    H
    514         SUPREME COURT REPORTS                   [2008] 5 S.C.R.


A         than the period of limitation prescribed by the local laws
                                                                           ..........
          may be preferred or made,
          (i)   within such shorter period or within a period of ninety
                days next after the commencement of this Act,
                whichever is longer"
B
          7. Section 5(b) of the Act also has relevance and reads as
    follows:
          "(5) Nothing in this Act shall,
                                                                               '
c         (a)   xx xx
          (b)   enable any suit, appeal or application to be instituted,
                preferred or made, for which the period of limitation
                prescribed by the local laws expired before the
                commencement of this Act"
D
          8. The High Court itself has noted in para 10 as follows:
                                                                           ~

          "10. It is appropriate to refer to the following dates:          ""
          Longer Limitation French Law           =     30 years
E         Shorter Limitation in Indian
          Limitation Act                         =     12 years
          As per the amended Act, time
          limit under French Law
          (22.4.1983 + 30 years)                 =    22.4.2013
F
          Shorter Limitation of Indian
                                                                           ).
          Limitation Act
          (22.4.1983 + 12 years)                 =    22.4.1995
          90 days from 1.3.95 or 3 months
G         application ought to have been
          filed                                  =    01.6.1995"
         9. The High Court is not correct in its view that E.P. No.        \
                                                                           ~
    177 of 1995 was a continuation of earlier EP No. 369 of 1986
    and other Execution Petitions. In fact EP No.369 of 1986 was
H
          KANAGAVALLIAMMAL AND ORS. v. R.                   515
       BALASUBRAMANIAN [DR. ARIJIT PASAYAT, J.]

dismissed for default on 28.3.1994 and the E.P. No. 238of1994,     A
filed to restore it, was dismissed as not pressed. Therefore,
there was no Execution Petition. For that matter no application
for recalling, or restoration of any EP was pending on the date
of commencement of the Act.
      10. That being so, the High Court was not justified in its   8
view. The impugned order of the High Court is set aside. The
E.P. No. 177 of 1995 having been filed beyond the prescribed
period of limitation was not maintainable and deserves to be
dismissed.
                                                                   c
       11. The appeal is allowed without any order as to costs.
D.G.                                           Appeal allowed.