ABDUL GAFOOR Vs. CHAIRMAN SAKTAN KURIES AND LOANS P LTD
HIGH COURT OF KERALA
ABDUL GAFOOR S/O MOIDEEN
CHAIRMAN, SAKTAN KURIES
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(1.) This matter has been placed before us on a reference made by one of us, K.Padmanabhan Nair, J. doubting the correctness of the decision in Sreedharan Nair v. Marakkar, 1987 (2) KLT 492 . The learned single Judge who decided Sreedharan Nair's case took the view that R.277 of the Civil Rules of Practice would give the decree holder six months time from the date of receipt of the decree by the transferee court to apply for execution even if 12 years period as contemplated under Art.136 of the Limitation Act, 1960 for execution of the decree is over. Court below applying the dictum laid down in the above mentioned case held E.R 323/99 is maintainable even though filed after a period of 12 years, the correctness of which is under challenge in this case.
(2.) Respondent herein filed O.S. 5/86 claiming an amount of Rs.12,232. An ex parte decree was passed on 19.8.1987 in favour of the plaintiff. Decree holder plaintiff filed E.R 1181/99 on 18.8.1999 before the Munsiff Court, Trichur for transferring the decree to Munsiff Court, Chavakkad. Application was allowed by the Munsiff, Trichur on 1.9.1999 transmitting the decree to the Munsiff Court, Chavakkad. The period of 12 years for executing the decree in O.S. 5/87 dated 19.8.1987 expired on 19.8.1999. Decree holder filed E.R 323/99 before Munsiff Court, Chavakkad on 13.10.1999. Objection was raised by the judgment debtor stating that E.R has been filed beyond 12 years from the date of the decree as provided under Art.136 of the Limitation Act, therefore liable to be dismissed as barred by limitation. Munsiff Court, Chavakkad placing reliance on the decision in Sreedharan Nair's case overruled the objection and held that the application is maintainable.
(3.) Counsel appearing for the judgment debtor submitted that the decision in Sreedharan Nair's case, requires reconsideration. Counsel took us through various provisions of the Limitation Act and also placed reliance on the decision of the Apex Court in West Bengal Essential Commodities Supply Corporation v. Swadesh Agro Farming and Storage Pvt. Ltd. ( 1999 (8) SCC 315 ) wherein it has been held if the time is reckoned from the date of the decree but from the date when the decree is prepared it would amount to doing violation to the provisions of the Limitation Act as well as O.21 R.11 CPC which is clearly impermissible. Counsel appearing for the respondent placing reliance on the decision of the learned single Judge of this Court in 1958 KLT 357 and contended that the transferrer court in passing the order to send the decree for the purpose of execution to the transferee court be deemed to have decided against any limitation so far as the further execution of the decree is concerned and that the transferor court is acting judicially.;
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