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Karnataka High Court
Vithabai G.Ghodake - Appellant
Versus
United Western Bank - Respondent
Decided On : 01-29-03
CIV.REVN. : 3983 of 2001
LIMITATION ACT, 1963 - Articles 136 & 182 and Civil Procedure Code, 1908, Section 115, 151 Order 21, Rules 16, 106, Order 5, Rules 10, 19(A)(2) -Execution proceedings initiated within 12 years -limitation not applicable -word hearing - meaning of.
[N. S. Veerabhadraiah, J.] - Under the old enactment, the period of limitation for executing a decree was 3 years. After the enactment of the Limitation Act of 1963, the period of limitation to execute a decree is 12 years. In the case on hand, the execution Petition No. 229/88 is filed within the period of 12 years.
Cases Referred: AIR 1945 Mad 154; AIR 1947 Mad 385; AIR 1909 AP 250.
Hearing
Hearing - In the Interpretation of Statutes, Eighth Edition by N. S. Bindra, at Page 985, under the Chapter "Select Words and Phrases", the word hearing is defined as under: "The word hearing includes the stage of the delivery of the judgment itself". Applying the same meaning for hearing , even if the case is posted for filing of the verified statement, it has to be construed that the case has been posted for hearing for all purposes. It is in this real sense of the meaning of hearing which has to be taken into consideration. Therefore, the dismissal of the application comes within the meaning of Rule 105 (2) of Order 21 CPC.
Light Motor Vehicle
Light Motor Vehicle - If the definition of Light Motor Vehicle and transport vehicle are read together, the inescapable conclusion is that a Light Motor Vehicle would include within its ambit a public service vehicle, a goods carriage, an educational bus or a private service vehicle.
No bar on impleading an interested person in execution proceedings
CIVIL PROCEDURE CODE, 1908 - Section 47 - Explanation II and Order I Rule 10(2) -Property purchased by the applicant -dispute continuing - held, he is proper and necessary party in execution proceedings.
[N. S. Veerabhadraiah, J.] - In this case, when the applicant has purchased the property in question and the dispute is a continuing one, such a person is entitled to come on record as a proper and necessary party. It has to be held that there is no bar to implead a person who has got an interest even in the Execution Proceedings. Therefore, on this ground also, the contention of the learned counsel is without any force.
Application for restoration
Order 21, Rule 106 - Order 21, Rules 106, 16, Section 115, 151 Order 5, Rules 10, 19(A)(2) and Limitation Act 1963, Articles 136 & 182 -Execution proceedings - dismissed for not filing the verified statement -petition filed for restoration of execution case - restored - whether amounts to fresh proceedings? No. Service of notice disputed - residence - not disputed -notices returned as not claimed -deemed service - execution proceedings initiated within 12 years -limitation not applicable -word hearing - meaning of -stated -restoration of execution petition -Order 21, Rule 106 applicable.
[N. S. Veerabhadraiah, J.] - The fact of the paper publications produced by the respondents to prove the fact that the advocates and the litigants were not permitted to enter the Court. Therefore, though the case stood posted for filing of the verified statement, the decree-holder could not able to enter the Court premisses on account of the agitation and boycott of Courts. Under such circumstances, it has to be held that the dismissal of the execution petition falls under Order 21 sub-rule (2) of Rule 105 of CPC. Therefore, Rule 106 of the CPC is attracted and can very well maintain the petition under Order 21 Rule 106 CPC.
Cases Referred: AIR 1945 Mad 154; AIR 1947 Mad 385; AIR 1909 AP 250.
( 1 ) THIS revision is by the judgment-debtor being aggrieved by the order passed in Misc. Case No. 40/2000 by the learned Civil Judge (Sr. Dn.), Hubli, dated 14-6-2001 restoring the Execution Case No. 229/88.
( 2 ) THE brief facts of the case are as follows : the United Western Bank Ltd. , obtained a decree against the judgment-debtor for Rs. 1,52,864/- in O. S. No. 13/1982. The said decree became final between the parties. The decree-holders took out execution for recovery of the amount in Ex. Case No. 229/88. The judgment-debtor dragged on the proceedings commencing from 1988. After all the formalities, the execution proceedings stood posted to 5-8-2000 for filing of the verified statement. On 5-8-2000, the execution petition came to be dismissed for non-compliance of Order 21, Rule 66 (3), CPC. The decree-holder-Bank immediately filed a Miscellaneous Petition under Order 21, Rule 106 r/w. 151, CPC for restoration of Ex. Case No. 229/88. The petition came to be registered as Misc. No. 40/2000. The learned Judge of the Executing Court by its order dated 14-6-2001 allowed Misc. No. 40/2000 by restoring the execution proceedings in Ex. Case No. 229/88. It is insofar as restoring of the execution case, the judgment-debtors have come up with this revision.
( 3 ) LEARNED Counsel Sri. M. H. Datar for the petitioners contended that when once the Execution Case No. 229/88 is dismissed, the restoration is bad in law, as the same is barred under Article 136 of the Limitation Act. Secondly contended that there is no finding by the learned Judge insofar as valid service of notice on respondents 1 and 2. When there is no finding regarding valid service of notice on them, the restoration is also bad. Thirdly contended that the petition under Order 21, Rule 106, CPC is not maintainable as Rule 105, CPC provides only for hearing of applications. The restoration of the Execution Case amounts to fresh proceedings. He has further contended that on the date of hearing, the Execution Case was posted for filing of verified statement and as the same was not complied with, the Execution Case was dismissed. Therefore, the application filed under Order 21, Rule 106, CPC is not at all maintainable. The order sheet dated 16-6-2000 in the execution case shows 'objections were not filed for sale notice'. Therefore, the case was adjourned to 1-7-2000 for filing of the verified statement. It is on 5-8-2000, the execution case was dismissed as the decree-holders and their advocate were absent. Therefore, the restoration of the execution case by invoking the provisions of Section 21, Rule 106, CPC is not sustainable. Accordingly, prayed to allow the revision by setting aside the order passed in Misc. No. 40/2000. In support of his contentions, the learned Counsel relied on the decisions reported in AIR 1945 Mys 154 (FB) (Salvapanthula Seshagiri Rao v. Rebala Subbarami Reddy); AIR 1947 Mad 385 (Nataraja Pillai v. U. Narayanaswami Iyer); AIR 1954 TC 1 (Krishna Panicker v. Kunchu); AIR 1969 AP 250 (Katragadda Ramayya v. Kolli Nageswara Rao); and 1971 (1) KLJ 4 (sic) (State Bank of Travancore v. M. Ramu ).
( 4 ) LEARNED Counsel Sri Seetharama Rao, for the decree-holder (1st respondent-Bank) contended that the Court notice was tendered in the normal course of service to respondents 1 and 2 in Misc. 40/2000. That Order 5, Rule 10, CPC as well as Order 5, Rule 19 (A) (2) of CPC makes it clear that the notice deemed to have been duly served and returned with an endorsement 'not claimed' is nothing but a refusal. Therefore, it is a deemed service. Even otherwise, it is clear from the order sheet that there is a valid service of court notice on the present petitioner No. 2 Smt. Neelaganga Tukaram Pol, who was respondent No. 3 in Misc. No. 40/2000. The service of notice on her is a valid service and it is well within the knowledge of others who did not choose to appear and contest the proceedings in Misc. No. 40/2000. He has further contended th
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