* Author
[2024] 4 S.C.R. 37 : 2024 INSC 259
Purni Devi & Anr.
v.
Babu Ram & Anr.
(Civil Appeal No. 4633 of 2024)
02 April 2024
[Sanjay Karol* and Aravind Kumar, JJ.]
Issue for Consideration
A suit was decreed in favour of plaintiff. Application for execution was
filed before the Tehsildar (settlement), Hiranagar on 18.12.2000. The
application was rejected on 29.01.2005. The Tehsildar observed that
plaintiff had not applied before the Court with appropriate jurisdiction.
Whether the period (18.12.2000 to 29.01.2005) diligently pursuing
execution petition before the Tehsildar, would be excluded for the
purposes of computing the period of limitation or not.
Headnotes
Limitation Act, 1963 – s. 14 – J&K Limitation Act – Art.182 –
The High Court dismissed the execution application preferred
by the plaintiff being barred by limitation – Sustainability:
Held: In the present case, it is not in dispute that:- (i) Both the
proceedings are civil in nature and have been prosecuted by
the Plaintiff or the predecessor in interest; (ii) The failure of the
execution proceedings was due to a defect of jurisdiction; (iii)
Both the proceedings pertain to execution of the decree dated
10.12.1986, which attains finality on 09.11.2000; (iv) Both the
proceedings are in a court – No substantial averment has come
on record to substantiate the claim that the predecessor in
interest of the Plaintiff approached the Tehsildar with any mala
fide intention, in the absence of good faith or with the knowledge
that it was not the Court having competent jurisdiction to execute
the decree – On a perusal of the record, it is apparent that the
Plaintiff has pursued the matter bonafidely and diligently and in
good faith before what it believed to be the appropriate forum
and, therefore, such time period is bound to be excluded when
computing limitation before the Court having competent jurisdiction
– All conditions stipulated for invocation of s.14 of the Limitation
Act are fulfilled – Therefore, the period from 18.12.2000, when
38 [2024] 4 S.C.R.
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the execution application was filed to 29.01.2005, when the prior
proceeding was dismissed, has to be excluded while computing
period of limitation – The impugned order of the High Court
dated 09.04.2018 and Munsiff Court, Hiranagar dated 28.11.2007
(dismissing application of plaintiff as being barred by limitation) are
set aside – The execution application of the Plaintiff is restored
to the file of the Munsiff Court, Hiranagar for fresh consideration.
[Paras 32, 37, 38, 39, 40]
Case Law Cited
Consolidated Engg. Enterprises v. Principle Secy,
Irrigation Department [2008] 5 SCR 1108 : (2008) 7
SCC 169; M.P. Steel Corporation v. CCE [2015] 7 SCR
291 : (2015) 7 SCC 58 – relied on.
Prem Lata Agarwal v. Lakshman Prasad Gupta
and others [1971] 1 SCR 364 : (1970) 3 SCC 440;
Sesh Nath Singh v. Baidyabati Sheoraphuli Coop.
Bank Ltd. [2021] 3 SCR 806 : (2021) 7 SCC 313;
Laxmi Srinivasa R and P Boiled Rice Mill v. State
of Andhra Pradesh and Anr. 2022 SCC Online SC
1790 – referred to.
J&K Bank Limited etc. v. Amar Poultry Farm AIR 2007
J&K 56 – referred to.
List of Acts
Limitation Act, 1963; J&K Limitation Act; Code of Civil Procedure,
1908.
List of Keywords
Application for execution; Appropriate jurisdiction; Limitation;
Computing the period of limitation; Pursued the matter bonafidely
and diligently; Exclusion of time of proceeding bona fide in court
without jurisdiction.
Case Arising From
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4633 of 2024
From the Judgment and Order dated 09.04.2018 of the High
Court of Jammu & Kashmir and Ladakh at Jammu in CREV No.
33 of 2008
[2024] 4 S.C.R. 39
Purni Devi & Anr. v. Babu Ram & Anr.
Appearances for Parties
Nitin Sangra, Riju Ghosh, Mrs. Pragya Baghel, Advs. for the
Appellants.
Sunil Fernandes, Sr. Adv., Ms. Nupur Kumar, Ms. Diksha Dadu,
Advs. for the Respondents.
Judgment / Order of the Supreme Court
Judgment
Sanjay Karol, J.
Leave Granted.
2. The present appeal arises from the final judgment and order in Civil
Revision No.33/2008 dated 09.04.2018 of the High Court of Jammu
and Kashmir at Jammu, whereby the judgment and order of Munsiff,
Hiranagar, in File No. 70/Execution dated 28.11.2007 came to be
affirmed, wherein the execution application preferred by the Plaintiff
herein was dismissed, being barred by limitation.
Factual History
3. The genesis of the case at hand dates back to 01.06.1984, wherein
the predecessors in interest of the Appellant (hereinafter “Plaintiff”)
filed a suit for possession against the Respondents (hereinafter
“Defendants”) herein. On 10.12.1986, this suit was decreed by learned
Munsiff, First Class Hiranagar, in favour of the Plaintiff, and the
Defendants were directed to deliver vacant and peaceful possession
of the property to the Plaintiff. This decree was challenged by the
Respondents before the learned District Judge, Kathua, in First
Appeal, which came to be dismissed on 09.02.1990. Thereafter, the
Respondents preferred a Second Appeal before the High Court of
Jammu and Kashmir which came to be dismissed vide Order dated
09.11.2000. No further appeal was preferred. Therefore, the decree
of the learned Munsiff Court attained finality on 09.11.2000.
4. The present lis arises from the application for execution filed by the
predecessor in interest of the Plaintiff, before the learned Tehsildar
(Settlement), Hiranagar on 18.12.2000. This application came to be
rejected on 29.01.2005, whereby the learned Tehsildar observed
that the Plaintiff had not applied before the Court with appropriate
jurisdiction.
40 [2024] 4 S.C.R.
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5. The Plaintiff thereafter, on 03.10.2005 preferred a fresh application
for execution before the Court of Munsiff, Hiranagar. This
application resulted in the order dated 28.11.2007, whereby, the
learned Munsiff Court dismissed the application as being barred
by limitation, which has come to be confirmed vide the impugned
order.
Reasoning of the Courts below
Munsiff Court, Order dated 28.11.2007
6. The question framed for determination was whether the execution
petition was filed within time and whether the period of limitation for
filing the execution petition is 3 years or 12 years.
7. The Court after a careful perusal of Article 182 of the J&K Limitation
Act (which provides for 3 years) and Section 48 of the Civil
Procedure Code (which provides for 12 years, hereinafter “CPC”),
observed that, Article 182 deals with period of Limitation for filing
an execution application for the first-time seeking enforcement of a
decree. Meanwhile, Section 48 of the CPC deals with subsequent
applications and fixes an outer limit when execution remains
unsatisfied.
8. The application was held to be required to be filed within 3 years,
as required by Article 182 of the J&K Limitation Act, which would run
from when the second appeal came to be dismissed. Accordingly,
the Munsiff Court, Hiranagar, held the application to be time-barred
and therefore, dismissed.
9. There was no argument or discussion about the exclusion of time
period under Section 14 of the Limitation Act at this stage.
10. The Plaintiff preferred Civil Revision No.33/2008 against the aforesaid
order which came to be dismissed vide the Impugned Order, dated
09.04.2018.
Impugned Order
11. The Impugned Order also framed the question as to whether for
execution of a decree, the application has to be filed within 12
years as prescribed by Section 48 of the CPC or within 3 years as
prescribed by Article 182 of J&K Limitation Act.
[2024] 4 S.C.R. 41
Purni Devi & Anr. v. Babu Ram & Anr.
12. Reliance was placed on a judgment rendered by the High Court
in J&K Bank Limited etc. v. Amar Poultry Farm1
wherein it was
observed that limitation for the first execution application shall be
governed by Article 182 of the J&K Limitation Act. Further reliance
was placed on the judgment of this Court in Prem Lata Agarwal v.
Lakshman Prasad Gupta and others2 (2-Judge Bench) wherein
Section 48 of the CPC came to be considered. This Court observed
that Section 48 provides for a maximum time limit provided for
execution, but it does not prescribe the period within which each
application for execution was to be made.
13. The argument of the Plaintiff that time spent in pursuing the
proceedings before the Tehsildar is required to be excluded, has
been recorded and rejected by the High Court.
14. It was finally held vide the Impugned Order that the dismissal of
the execution petition is well reasoned and, therefore, cannot be
interfered with. However, while disposing off the revision, the Court
observed that the State Code of Civil Procedure is required to be
brought to 12 years.
Submissions on behalf of the Appellant/Plaintiff
15. Learned counsel for the Plaintiff has submitted that the reasoning
of the learned High Court that the Plaintiff had chosen a wrong
forum and is not entitled to exclusion of time runs, contrary to the
law laid down by this Court that the provisions of Section 14 of the
Limitation Act, 1963 are meant for grant of relief, where a person
has committed some mistake and such provisions should be applied
in a broad manner. Furthermore, the provision of Section 14 of the
Limitation Act is para materia to the provisions of Section 14 of the
Limitation Act, as applicable to the then State of Jammu and Kashmir.
16. The Plaintiff has sought to place reliance on the judgment of this Court
in Consolidated Engg. Enterprises v. Principle Secy, Irrigation
Department3
(3-Judge Bench) and M.P. Steel Corporation v. CCE4
1 AIR 2007 J&K 56
2 [1971] 1 SCR 364 : (1970) 3 SCC 440
3 [2008] 5 SCR 1108 : (2008) 7 SCC 169
4 [2015] 7 SCR 291 : (2015) 7 SCC 58
42 [2024] 4 S.C.R.
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(2-Judge Bench) wherein it was expounded that the provisions of
Section14 of the Limitation Act are to advance the cause of justice
and must be interpreted to do so rather than abort proceedings.
17. It has been further submitted that in light of the facts of the present
case, the Plaintiff is entitled to exclusion of time consumed in pursuing
their remedy before the learned Tehsildar, in view of Section 14(2) of
the Limitation Act. The filing of the application by the predecessor of
the Plaintiff before the Tehsildar for implementation of the judgment
and decree dated 09.10.1986 was under a genuine bona fide belief
and in good faith that the Tehsildar possess the jurisdiction to execute
decrees passed by a Civil Court.
18. In lieu of this conspectus, it has been submitted that previous recourse
to a mistaken remedy or selection of a wrong forum by the Plaintiff
cannot be said to be bereft of bona fides, due diligence or lacking
in good faith.
19. Further, it is not disputed that in view of Section 105 and 112 of the
Land Revenue Act, the Court of learned Tehsildar, Settlement, has
all the trappings of a Court and thus would fall within the scope and
ambit of the expression “Court” for the purpose of Section14 of the
Limitation Act.
20. Lastly, in view of the facts submitted above, it would be a travesty
of justice, if, on mere technicalities, the Plaintiff is deprived from
reaping the fruits of the decree.
Submissions on behalf of the Respondent
21. Learned counsel for the Respondents has vehemently opposed the
stand taken by the Plaintiff. It has been submitted that the Plaintiff is
taking this plea for the first time before this Court and did not raise
the plea of Section 14 of the Limitation Act before the Courts below.
22. It was a deliberate act of wilful disobedience at the Plaintiff’s end
and the plea of Section 14 of the Limitation Act ought to have been
raised at the very first instance.
23. It is further submitted that the Plaintiff herein has not approached
the Court with clean hands. They have concealed the fact that they
did not enter appearance in the Second Appeal and thereafter, had
filed an application for setting aside the ex-parte order, which was
allowed, and only thereafter, the second appeal was dismissed vide
[2024] 4 S.C.R. 43
Purni Devi & Anr. v. Babu Ram & Anr.
the impugned order. This Court in M.P. Steel (Supra) has reiterated
that ‘due diligence’ and ‘good faith’ means that the party who invokes
Section 14 is not guilty of negligence, lapse or inaction.
Issue before this Court
24. In view of the submissions raised, the issue which arises for
consideration of this Court is as to whether the period (18.12.2000
to 29.01.2005) diligently pursuing execution petition before the
Tehsildar, would be excluded for the purposes of computing the
period of limitation or not.
Analysis & Consideration
25. The relevant portion of Section 14 of the Limitation Act is extracted
as under, for ready reference:
“Section 14. Exclusion of time of proceeding bona fide in
court without jurisdiction. …
…
(2) In computing the period of limitation for any
application, the time during which the applicant has
been prosecuting with due diligence another civil
proceeding, whether in a court of first instance or
of appeal or revision, against the same party for the
same relief shall be excluded, where such proceeding
is prosecuted in good faith in a court which, from
defect of jurisdiction or other cause of a like nature,
is unable to entertain it.”
….
26. The Plaintiffs have submitted that the provision of Section14 of
the Limitation Act, finds place in the Limitation Act applicable
to the then State of J&K, which has not been contested by the
Respondents.
27. On a perusal of Section 14(2) of the Limitation Act, which is also
applicable to the State of Jammu and Kashmir, it is evident that it
carves out an exception excluding the period of limitation when the
proceedings are being pursued with due diligence and good faith
in a Court “which from defect of jurisdiction or other cause of a like
nature, is unable to entertain it”.
44 [2024] 4 S.C.R.
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28. The first objection raised by Defendants is that the plea of exclusion
of limitation has not been raised before the Courts below and cannot
be raised at the first instance before this Court.
29. We do not find merit in this submission, the learned High Court in
paragraph 9 has categorically recorded the submission of the Plaintiff
pertaining to the exclusion of time spent in pursuing the proceedings
before the learned Tehsildar. Therefore, it cannot be said that the
plea of exclusion has been raised for the first time, before this Court.
30. The principles pertaining to applicability of Section 14, were
extensively discussed and summarised by this Court in Consolidated
Engg. Enterprises (Supra), wherein while holding the exclusion of
time period under Section 14 of the Limitation Act to a petition under
Section 34 of the Arbitration Act it was observed:-
“21. Section 14 of the Limitation Act deals with exclusion of
time of proceeding bona fide in a court without jurisdiction.
On analysis of the said section, it becomes evident that
the following conditions must be satisfied before Section
14 can be pressed into service:
(1) Both the prior and subsequent proceedings are civil
proceedings prosecuted by the same party;
(2) The prior proceeding had been prosecuted with due
diligence and in good faith;
(3) The failure of the prior proceeding was due to defect
of jurisdiction or other cause of like nature;
(4) The earlier proceeding and the latter proceeding must
relate to the same matter in issue; and
(5) Both the proceedings are in a court.”
31. This Court in Consolidated Engg. Enterprises (Supra) further
expounded that the provisions of this Section, must be interpreted
and applied in a manner that furthers the cause of justice, rather
than aborts the proceedings at hand and the time taken diligently
pursuing a remedy, in a wrong Court, should be excluded.
32. In the present case, it is not in dispute that:-
(i) Both the proceedings are civil in nature and have been
prosecuted by the Plaintiff or the predecessor in interest.
[2024] 4 S.C.R. 45
Purni Devi & Anr. v. Babu Ram & Anr.
(ii) The failure of the execution proceedings was due to a defect
of jurisdiction.
(iii) Both the proceedings pertain to execution of the decree dated
10.12.1986, which attains finality on 09.11.2000.
(iv) Both the proceedings are in a court.
33. The only objection pointed out by the Respondent to the ingredients
for invocation of Section 14, is that the Plaintiff have not approached
this Court with clean hands and did not approach the Court of the
Tehsildar diligently and in good faith.
34. The judgment of this Court in M.P. Steel (Supra) discussed the
phrases, “due diligence” and “in good faith” for the purposes of
invocation of Section 14 of the Limitation Act. While considering
the application of Section 14 to the Customs Act, it was observed:
“10. We might also point out that Conditions 1 to 4
mentioned in the Consolidated Engg. case [(2008) 7
SCC 169] have, in fact, been met by the Plaintiff. It is
clear that both the prior and subsequent proceedings are
civil proceedings prosecuted by the same party. The prior
proceeding had been prosecuted with due diligence and in
good faith, as has been explained in Consolidated Engg.
[(2008) 7 SCC 169] itself. These phrases only mean
that the party who invokes Section 14 should not be
guilty of negligence, lapse or inaction. Further, there
should be no pretended mistake intentionally made
with a view to delaying the proceedings or harassing
the opposite party.
xxx xxx xxx
49. ……. the expression “the time during which the
plaintiff has been prosecuting with due diligence
another civil proceeding” needs to be construed in
a manner which advances the object sought to be
achieved, thereby advancing the cause of justice.”
(emphasis supplied)
35. The judgments in Consolidated Engg. Enterprises (Supra) and
M.P. Steel (Supra) have been followed consistently by this Court.
For instance in Sesh Nath Singh v. Baidyabati Sheoraphuli Coop.
46 [2024] 4 S.C.R.
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Bank Ltd.5
(2-Judge Bench), while holding Section 14 to be applicable
to applications under Section 7 of the Insolvency and Bankruptcy
Code, 2016 and the SARFAESI Act, it was observed:-
“75. Section 14 of the Limitation Act is to be read as a
whole. A conjoint and careful reading of sub-sections (1),
(2) and (3) of Section 14 makes it clear that an applicant
who has prosecuted another civil proceeding with due
diligence, before a forum which is unable to entertain the
same on account of defect of jurisdiction or any other
cause of like nature, is entitled to exclusion of the time
during which the applicant had been prosecuting such
proceeding, in computing the period of limitation. The
substantive provisions of sub-sections (1), (2) and (3) of
Section 14 do not say that Section 14 can only be invoked
on termination of the earlier proceedings, prosecuted in
good faith.”
36. More recently, in Laxmi Srinivasa R and P Boiled Rice Mill v. State
of Andhra Pradesh and Anr.6
(2-Judge Bench), this Court followed
the dictum in Consolidated Engg. Enterprises (Supra) and M.P.
Steel (Supra) to exclude the time period undertaken by the Plaintiff
therein in pursuing remedy under Writ Jurisdiction, in the absence
of challenge to the bona fides of the Plaintiff, in view of Section 14.
37. No substantial averment has come on record to substantiate the
claim that the predecessor in interest of the Plaintiff approached the
Tehsildar with any mala fide intention, in the absence of good faith
or with the knowledge that it was not the Court having competent
jurisdiction to execute the decree. The object to advance the cause
of justice, as well must be kept in mind.
38. We do not find the reasoning given by the learned High Court in
paragraph 9 while rejecting the plea for exclusion of time to be
sustainable. On a perusal of the record, it is apparent that the Plaintiff
has pursued the matter bonafidely and diligently and in good faith
before what it believed to be the appropriate forum and, therefore, such
time period is bound to be excluded when computing limitation before
5 [2021] 3 SCR 806 : (2021) 7 SCC 313
6 2022 SCC Online SC 1790
[2024] 4 S.C.R. 47
Purni Devi & Anr. v. Babu Ram & Anr.
the Court having competent jurisdiction. All conditions stipulated for
invocation of Section 14 of the Limitation Act are fulfilled.
39. Therefore, in view of the above discussion the period from 18.12.2000,
when the execution application was filed to 29.01.2005, when the
prior proceeding was dismissed, has to be excluded while computing
period of limitation, which results in the execution application filed
by the Plaintiff, being within the limitation period prescribed under
Article 182 of the Limitation Act as well, which is 3 years.
40. Consequently, the appeal is allowed. The impugned order of the
High Court dated 09.04.2018 and Munsiff Court, Hiranagar dated
28.11.2007 are set aside. The execution application of the Plaintiff
is restored to the file of the Munsiff Court, Hiranagar for fresh
consideration, in consonance with the view on limitation which has
been decided above.
41. Pending applications, if any, are disposed of. No order as to costs.
Headnotes prepared by: Ankit Gyan Result of the case:
Appeal allowed.
