(Per: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH)

1. The present appeal under Clause 10 of Letters Patent of Patna High Court has been preferred by the Branch Manager, Central Bank of India, Muradpur, Patna challenging the order dated 18-01-2010 passed by the learned Single Judge in CWJC No. 10884/2009 (M/s A. M. Brothers, Gobind Mitra Road, P.S. Pirbahore, District Patna vs. Union of India & Others). By the impugned order the learned Single Judge held that the order passed in Execution Case (OA) 12 of 2006 by the learned Presiding Officer of the Debt Recovery Tribunal at Patna condoning the delay in filing the Execution Case was beyond the jurisdiction as Section 5 of the Limitation Act is not applicable to such execution petition.

2. The facts are admitted and are short. The respondent No.1 is the writ petitioner who had applied to the Muradpur branch of Central Bank of India for cash credit loan, whereupon the cash credit limit of Rs. 50,000/- (Rupees fifty thousand) was sanctioned in his favour by the appellant- Bank on 08-04-1981. The respondent No.1 defaulted in making the payment of installments and the cash credit amount became irregular. A demand for payment of a sum of Rs. 1,30,442.42/- was made by the appellant- Bank through a demand notice served on respondent No.1 by registered post on 12-11-1986. As the respondent No.1 did not make payment inspite of service of demand notice, the Bank filed a money suit No. 150/1987 in the court of Sub Judge-IX, Patna for realization of the said amount. The suit was heard ex-parte and decreed on 08-06-1992. On 19-06-1992 the decree was prepared and notified and on 22-06-1992 the decree was sealed and signed (annexure-1 to the writ petition). The Bank thereafter did not take any step for execution of the said decree dated 08-06-92 immediately thereafter. This is also not in dispute that respondent No.1 filed a Miscellaneous case vide Misc. Case No. 15/92 under Order IX Rule 13 of the Code of Civil Procedure to set aside the ex- parte judgment and decree dated 08-06-1992. The said Miscellaneous case ultimately came to be dismissed on 04-12-1999 as would appear from the petition filed by the Bank before the Debt Recovery Tribunal Patna under section 5 of the Limitation Act for condoning the delay (annexure-3 to the writ petition).

3. Nearly 14 years after the date of decree the respondent filed Execution Case No.12 of 2006 along with a petition for condoning the delay under section 5 of the Limitation Act, 1963. The respondent No.1 opposed the execution petition and the limitation petition also, on the ground that the same was not maintainable being time barred, as section 5 of the Limitation Act, 1963 had no application to execution petition. The Presiding Officer, Debt Recovery Tribunal, Patna, however, vide impugned order dated 29-06-2009 allowed the application for condoning the delay observing that considerable procedural delay in the process of decision making was a common feature and, therefore, certain amount of latitude was not impermissible. The learned Presiding Officer observed that if the appeals brought by the State are lost for such default, no person would be individually affected but in ultimate analysis the public interest would suffer.

4. The said order dated 29-06-2009 was challenged by the respondent No.1 by way of filing CWJC No. 10884/2009 with a plea that execution case itself was not maintainable being barred by limitation and, further, that section 5 of the Limitation Act, 1963 had no application to Article 136 of the schedule to the Limitation Act. Learned Single Judge, placing reliance upon following judgments of the Apex Court held that Debt Recovery Tribunal had no jurisdiction and power to condone the delay in execution case:-

(i) (2007) 11 SCC 363, State of Punjab and others vs. Bhatinda District Co-operative Milk Producers Union Ltd.

(ii) AIR 1999 SC, 3421, West Bengal Essential Commodities Supply Corporation vs. Swadesh Agro Farming and S