# Smt. Shobha Srivastava & Ors v. District & Session Judge Faizabad & Ors

- **Citation:** (2024) 3 ILRA 1460
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-15
- **Case number:** Matter Under Article 227 No. 541 of 2024
- **Bench:** Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shobha-srivastava-ors-v-district-session-judge-faizabad-ors-51608
- **Pages:** 20

## Headnote

Civil Law - Limitation Act, 1963 - Article
136, Sections 3, 5 & 15 - Execution of Decree
- Time-Barred Execution Application - Petitioners
(judgment-debtors)
challenged
execution
proceedings (Execution Case No. 8/2017) arising
from a decree of eviction dated 21.01.1982 in
SCC Suit No. 57/1980, filed on 19.07.2017, as
time-barred under Article 136, which prescribes
a 12-year limitation period for executing a
decree from the date it becomes enforceable.
Decree
challenged
in
revision
(dismissed
12.05.1983)
and
writ
petition
(dismissed
22.01.1997) with no stay orders. Execution
application, filed 35 years after the decree and
20 years after writ dismissal, was accompanied
by a Section 5 condonation application, which
was not pressed. Executing Court and Revisional
Court erred in not addressing limitation as a
jurisdictional issue under Section 3, wrongly
assuming Section 5 applicability to execution
proceedings. Supreme Court rulings, including
SBI Vs B.S. Agriculture Industries (2009) 5 SCC
121
and
W.B.
Essential
Commodities
Vs
Swadesh Agro (1999) 8 SCC 315, confirm
Section
5
inapplicability
to
execution
applications and mandate courts to examine
limitation irrespective of defense. Execution
application, filed beyond 12 years (expiring 1994
or at latest 2009), was time-barred. Impugned
orders (06.04.2018, 07.08.2018, 14.09.2021,
10.11.2021,
28.04.2022,
31.05.2022,
24.01.2024) set aside as erroneous, and
Execution Case No. 8/2017 dismissed as timebarred. Petitions allowed with Rs. 50,000/- costs
payable by petitioners to private respondents
3 All. Smt. Shobha Srivastava & Ors. Vs. District & Session Judge Faizabad & Ors.
1461
within three weeks, failing which recoverable
with 9% interest. (Paras 14-55)

Petitions Allowed with Costs.

Case Law Cited:

## Text

_Characters 0–39,947 of 67,033. This is a partial read: ask again with offset=39947 for what follows._

1460 INDIAN LAW REPORTS ALLAHABAD SERIES
petition. Counsel for the petitioners could
not substantiate his submissions as made in
assailing the impugned orders passed by
the S.O.C. and the D.D.C. The findings
recorded by the S.O.C. with regard to non
compliance of the provisions as enshrined
under section 25-A of the U.P.C.H. Rules
and not controverting the pleadings taken
by the appellants, by filing the counter
affidavit, became final between the parties,
inasmuch as, the same has neither been
challenged before the Revisional court nor
before this Court in the present writ
petition. There is no illegality, perversity or
any manifest error in the impugned orders
so as to warrant the indulgence of this
Court in exercise of its extraordinary
jurisdiction under Article 226 of the
Constitution of India.

13. Present writ petition is devoid
of merits and it is, accordingly, dismissed."

12. Upon due consideration of
aforesaid and also the undisputed position
that the appeal was filed after publication
of notification under Section 52 of the Act
of 1953 as also that to controvert the law
settled by the Co-ordinate Bench of this
Court in the judgment(s), referred above,
no authority has been placed before this
Court by Mr. Khan, learned Senior
Advocate, this Court finds no force in the
present
petition.
It
is
accordingly
dismissed. No order as to costs.
----------
(2024) 3 ILRA 1460
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.03.2024

BEFORE

THE HON'BLE JASPREET SINGH, J.

Matter Under Article 227 No. 541 of 2024
alongwith
Matter Under Article 227 No. 1644 of 2022

Smt. Shobha Srivastava & Ors.
 ...Petitioners
Versus
District & Session Judge Faizabad & Ors.
 ...Respondents

Counsel for the Petitioners:
Vipin Kumar Mishra

Counsel for the Respondents:
R.R. Upadhyaya, Pradeep Kumar Singh, Vats
Srivastava, C.S.C., Dr. V.K.

Civil Law - Limitation Act, 1963 - Article
136, Sections 3, 5 & 15 - Execution of Decree
- Time-Barred Execution Application - Petitioners
(judgment-debtors)
challenged
execution
proceedings (Execution Case No. 8/2017) arising
from a decree of eviction dated 21.01.1982 in
SCC Suit No. 57/1980, filed on 19.07.2017, as
time-barred under Article 136, which prescribes
a 12-year limitation period for executing a
decree from the date it becomes enforceable.
Decree
challenged
in
revision
(dismissed
12.05.1983)
and
writ
petition
(dismissed
22.01.1997) with no stay orders. Execution
application, filed 35 years after the decree and
20 years after writ dismissal, was accompanied
by a Section 5 condonation application, which
was not pressed. Executing Court and Revisional
Court erred in not addressing limitation as a
jurisdictional issue under Section 3, wrongly
assuming Section 5 applicability to execution
proceedings. Supreme Court rulings, including
SBI Vs B.S. Agriculture Industries (2009) 5 SCC
121
and
W.B.
Essential
Commodities
Vs
Swadesh Agro (1999) 8 SCC 315, confirm
Section
5
inapplicability
to
execution
applications and mandate courts to examine
limitation irrespective of defense. Execution
application, filed beyond 12 years (expiring 1994
or at latest 2009), was time-barred. Impugned
orders (06.04.2018, 07.08.2018, 14.09.2021,
10.11.2021,
28.04.2022,
31.05.2022,
24.01.2024) set aside as erroneous, and
Execution Case No. 8/2017 dismissed as timebarred. Petitions allowed with Rs. 50,000/- costs
payable by petitioners to private respondents
3 All. Smt. Shobha Srivastava & Ors. Vs. District & Session Judge Faizabad & Ors.
1461
within three weeks, failing which recoverable
with 9% interest. (Paras 14-55)

Petitions Allowed with Costs.

Case Law Cited:

1. SBI Vs B.S. Agriculture Industries (I), (2009)
5 SCC 121 (Para 39)

2. Noharlal Verma Vs Distt. Coop. Central Bank
Ltd., (2008) 14 SCC 445 (Para 39)

3. Chandi Prasad Vs Jagdish Prasad, (2004) 8
SCC 724 (Para 39)

4. Bimal Kumar Vs Shakuntala Debi, (2012) 3
SCC 548 (Para 39)

5. W.B. Essential Commodities Supply Corp. Vs
Swadesh Agro Farming, (1999) 8 SCC 315 (Para
41)

6. Ashok Leyland Ltd. Vs St. of Tamil Nadu,
(2004) 3 SCC (Para 50)

7. A. Jithendranath Vs Jubilee Coop. House
Building Society, (2006) 10 SCC 96 (Para 50)

8. Chandra Mouli Deva Vs Kumar Binoya Nand
Singh, AIR 1976 Pat 208 (Para 41)

9. Sunderlal & Sons Vs Yagendra Nath Singh,
AIR 1976 Cal 471 (Para 41)

10. Ram Krishna Tarafdar Vs Nemai Krishna
Tarafdar, AIR 1974 Cal 173 (Para 41)

11. U.J.S. Chopra Vs St. of Bombay, AIR 1955
SC 633 (Para 39)

12. VSM. Salgaocar and Bros. (P) Ltd. Vs CIT,
(2000) 5 SCC 373 (Para 39)

13. Rachakonda Venkat Rao Vs R. Satya Bai,
(2003) 7 SCC 452 (Para 39)

14. Hasham Abbas Sayyad Vs Usman Abbas
Sayyad, (2007) 2 SCC 355 (Para 39)

15. Bikoba Deora Gaikwad Vs Hirabai Marutirao
Ghorgare, (2008) 8 SCC 198 (Para 39)

(Delivered by Hon'ble Jaspreet Singh, J.)

1. Heard Sri Manoj Mishra, learned
counsel for the petitioner and Sri R.R
Upadhyay, along with Sri P.K. Singh Vats
learned counsel for the private respondents.

2. The petitioners are the judgmentdebtors of execution case no. 08 of 2017
which emanates from a SCC Suit No. 57 of
1980 which came to be decreed on
21.01.1982.The core question involved in
the instant two petitions relates to question
of limitation for executing a decree of
eviction. Since the dispute between the
parties has a chequered history, hence, in
order to appreciate the issue involved in
this petition, it will be necessary to briefly
recapitulate certain facts giving rise to the
instant petitions.

3. The predecessors-in-interest of the
private respondents no. 3 to 6 namely
Harimohan Verma had instituted a SCC
suit bearing No. 57 of 1980 against the
predecessors-in-interest of the petitioners
namely
Narsingh
Narayan
Srivastava
which was decreed on 21.01.1982.

4. The predecessors-in-interest of the
petitioners had assailed the said decree of
eviction dated 21.01.1982 in a revision
which was also dismissed on 12.05.1983.
The
predecessors-in-interest
of
the
petitioners further escalated the matter by
filing a writ petition before this Court
bearing No. 3408 of 1983 which was also
dismissed on 22.01.1997. With this, the
original proceedings between the parties
came to an end.

5. It is only thereafter that a second
round of litigation sprouted between the
parties when the private respondent nos. 3
to 6 filed an execution application for
1462 INDIAN LAW REPORTS ALLAHABAD SERIES
getting
the
decree
dated
21.01.1982
executed.

6. The execution application was filed
on 19.07.2017 along with an application
seeking condonation of delay which came
to be registered as Misc. Case No. 8 of
2017. The Executing Court issued notices
and in response the petitioners who are the
successors-in-interest
of
Sri
Narsingh
Narain Srivastava, the original judgmentdebtor filed their objections under Section
47 C.P.C. which was registered as Misc.
Case No. 15 of 2018 and was dismissed on
06.04.2018. The petitioners further assailed
the said order by filing a revision bearing
No. 19 of 2018 which was also dismissed
on 07.08.2018.

7. The petitioners further resisted the
execution of the decree by moving a
detailed application bearing Paper No. Ga29 raising the the issue of limitation in
terms of Article 136 as mentioned in the
schedule appended with the Limitation Act,
1963 and contested the decree which could
only be executed within 12 years and in the
instant case, since the execution application
was filed on 19.07.2017 relating to the
decree of the year 1982, hence, it was time
barred and could not be executed. The
Executing
Court
rejected
the
said
application by means of order dated
14.09.2021 which was again assailed by the
petitioners in Revision which was also
dismissed on 10.11.2021.

8. It is thereafter that the private
respondents who are the decree-holder not
pressed their application under Section 5 of
the
limitation
Act
which
was
accompanying the execution application
and the petitioners taking cue therefrom
moved another application stating that
since the decree-holders have not pressed
their application under Section 5 of the
Limitation Act, consequently, the execution
application itself must be rejected as time
barred. This application of the petitioners
was rejected on 28.04.2022.

9. The petitioners being aggrieved
preferred a petition under Article 227 of the
Constitution of India before this Court
registered as W.P. No. 1644 of 2022
(which is connected with the instant
petition) wherein the petitioners laid a
challenge to the orders passed by the
Executing Court dated 06.04.2018 whereby
the objections under Section 47 C.P.C.
were rejected, order dated 07.08.2018
whereby the revision of the petitioners
arising out of the order dated 06.04.2018
was
rejected.
The
petitioners
also
challenged the order dated 14.09.2021 by
which his separate application bearing
Paper No. Ga-29 raising the issue of
limitation was rejected by the Executing
Court and also the order dated 10.11.2021
whereby the revision of the petitioners was
dismissed
wherein
the
order
dated
14.09.2021 was challenged. The petitioners
also challenged the order dated 28.04.2021
whereby the Trial Court had rejected the
contention of the petitioners that since the
decree-holders had not pressed their
application
under
Section
5
of
the
Limitation Act so the execution application
must also be dismissed as time barred.

10. The petition bearing No. 1644 of
2022 was entertained by a coordinate
Bench of this Court by means of an order
dated 23.05.2022 requiring the parties to
exchange
the
pleadings.
While
the
aforesaid petition No. 1644 of 2022 was
pending and as there was no stay to the
execution proceedings, the Executing Court
proceeded and passed an order dated
3 All. Smt. Shobha Srivastava & Ors. Vs. District & Session Judge Faizabad & Ors.
1463
31.05.2022 permitting the execution to be
done by breaking open the locks to enable
the Amin to evict the petitioners and also
permitting the Court Amin to seek police
aid. This order dated 31.05.2022 came to
be assailed by the petitioners by filing a
petition
under
Article
227
of
the
Constitution of India bearing No. 2133 of
2022 wherein a coordinate Bench of this
Court while calling upon the parties to
exchange pleadings stayed the operation of
the order dated 31.05.2022 and the said
petition was also connected with the earlier
petition bearing No. 1644 of 2022.

11. Later, the W.P. No. 2133 of 2022
came to be dismissed by a coordinate
Bench of this Court by means of order
dated 18.10.2023 and liberty was granted to
the petitioners to assail the order before the
Revisional Court. It is in view thereof that
the W.P. No. 2133 of 2022 came to be
dismissed and de-tagged.

12. In view of the aforesaid liberty
granted in the W.P. bearing No. 2133 of
2022, the petitioners filed a revision before
the Revisional Court which came to be
dismissed
on
24.01.2024
and
being
aggrieved against the said order, the instant
petition bearing No. 541 of 2024 was filed
wherein the petitioners have assailed not
only the order dated 24.01.2024 but also
the order dated 31.05.2022. The instant
petition bearing No. 541 of 2024 was
entertained by a coordinate Bench of this
Court by means of a detailed order dated
06.02.2024. The parties were required to
exchange the pleadings, however, in the
meantime, since there was no stay of the
execution proceedings, accordingly, the
Executing Court in furtherance of the order
dated 31.05.02022 had directed the Court
Amin to file its report regarding execution
of the decree on 26.02.2024.

13. In the aforesaid circumstances, the
learned counsel for the petitioner had
mentioned the matter which was listed in
the cause list for hearing as the petitioners
were under a threat of dispossession and
execution of the decree which was to be
executed as per the programme set by the
Amin on 21.02.2024. The Court with the
consent of the respective parties fixed the
matter on 21.02.2024 and heard the matter.
Since the Court Amin along with the police
had reached the site for executing the
decree and this Court was simultaneously
hearing the matter on merits, accordingly,
the Court while reserving the judgment on
the said date passed an order dated
21.02.2024 which reads as under:-

"1. Heard Shri Manoj Mishra,
learned counsel for the petitioners and Shri
R.
R.
Upadhyaya,
learned
counsel
alongwith Shri P. K. Singh Vats for the
private respondents.

2.
The
instant
petition
is
connected with petition A-227 No.1644 of
2022 in between the same parties and
relating to the same subject matter.

3. The issue in question relates to
the question of law as to what would be the
limitation for executing a decree of eviction
and if period of 12 years as provided under
Article 126 of the appended to Schedule the
Limitation Act expires, then whether the
said decree can be executed by taking
recourse to Section 5 of the Limitation Act
or the decree become inexecutable by lapse
of time.

4. This matter was listed before
the Court on 20.02.2024 and it was
informed by the counsel for the petitioners
that since the decree of eviction is being
pressed against the petitioners for which
the executing court had passed an order
directing the decree to be executed with
police
force
fixing
the
matter
on
1464 INDIAN LAW REPORTS ALLAHABAD SERIES
26.02.2024 and it was also informed that
the execution proceedings alongwith Court
Amin and police force would be conducted
on 21.02.2024.

5. It is in this view of the matter
that the petitions were directed to be listed
today for hearing. It has also been
informed by the learned counsel for the
parties that the police has reached the site
and is being the process of conducting the
execution.

6. The Court has heard the
learned counsel for the parties and prima
facie a case for consideration is made out
as shall also be evident from the order
passed by a Co-ordinate Bench of this
Court
dated
06.02.2024.
Since
the
execution proceedings had commenced,
accordingly the Court had requested the
learned Standing Counsel to inform the
police station concerned from where the
possee of the police contingent had
accompanied the Court Amin for executing
the decree to go back as the matter has
been heard and it is reserved for judgment.

7. This order has been passed in
presence of Shri Manoj Mishra, learned
counsel for the petitioners and Shri R. R.
Upadhyaya, learned counsel alongwith
Shri P. K. Singh Vats for the private
respondents and the learned Standing
Counsel.

8. The police is directed to go
back and the Court Amin is also directed to
stay the execution proceedings forthwith.

9.
This
order
shall
be
communicated even to the executing court
and for that the parties will be at liberty by
filing an affidavit which shall be taken note
of by the executing court where the matter
is listed on 26.02.2024.

10.
Accordingly
till
pronouncement of judgment the execution
of the decree shall remain stayed and
parties shall maintain status quo as it exists
today."

14. The submission of learned counsel
for the petitioners is that the decree dated
21.01.1982 passed in SCC Suit No. 57 of
1980 was governed by Article 136 as
mentioned in the schedule appended to the
Limitation Act, 1963 which provides for a
limitation of 12 years for executing a
decree.

15. The submission is that the decree
was passed on 21.01.1982 and even though
the petitioners had filed a revision before
the District Court and later a writ petition
bearing No. 3408 of 1983 was filed before
the Court but nevertheless during this
period, there was no stay from either the
Revisional Court or the High Court in the
writ petition, hence, the period of limitation
would start from the date of the decree i.e.
21.01.1982 and the period of 12 years
expired in the year 1994.

16. It is further submitted that the
execution
application
was
filed
on
19.07.2017 i.e. after 23 years from the
expiry of the period of limitation and after
35 years from the date of decree. In such
circumstances, apparently, the decree was
time barred and no execution of such
decree could take place.

17. The learned counsel for the
petitioners further submits that the private
respondents are guilty of sharp tactics,
inasmuch as, when the application for
execution was filed on 19.07.2017, there is
a report of the Munsrim of the Court
clearly stating that the application for
execution was time-barred.

18. Even though, the provisions of
Section 5 of the Limitation Act, 1963 do
3 All. Smt. Shobha Srivastava & Ors. Vs. District & Session Judge Faizabad & Ors.
1465
not
apply
to
execution
proceedings,
nevertheless, the private respondents who
are the decree-holders have moved an
application, along with the execution
application, seeking condonation of delay
under Section 5 of the Limitation Act,
1963.

19. It is urged that though the
Executing Court had passed an order
directing the said case to be listed as a
misc.
case,
however,
the
private
respondents tampered with the record and
instead of the words 'Prakeen wad darj ho"
(register as misc. case) as ordered by the
Executing Court, they interpolated the said
words as "Ijraywad Darj Ho" (register as
execution case)."

20. It is further urged that while the
petitioners have filed objections under
Section 47 C.P.C. yet the issue of limitation
was not decided rather the Executing Court
and the Revisional Court had proceeded as
if the provisions of Section 5 of the
Limitation Act were applicable and held
that since the explanation given by the
decree-holder for filing the application late
was adequate and thus it held that the
execution application was within time. It is
stated that no clear finding in this regard
was given by any of the courts despite
several rounds of litigation and though this
core issue was raised by the petitioners but
remained undecided.

21. Elaborating his submissions, Sri
Mishra has urged that the Executing Court
who decided the objections under Section
47 C.P.C. completely went on a tangent
and concluded that since the parties were
litigating and during the pendency of W.P.
No. 3408 of 1983 the original decree holder
had expired and his heirs were not brought
on record. But later when the legal heirs of
decree holders came to know, they filed the
execution application which it would not
impact adversely the filing of the execution
application and it further held that the
compromise which had been arrived at
between the parties was unregistered and
insufficiently stamped and could not be
taken note of by the executing court, hence,
the objections were rejected.

22. On the matter being taken before
the Revisional Court, it observed that since
the W.P. No. 3408 of 1983 had been
dismissed in default and the restorations
applications were pending that would come
to the benefit of the decree holder and it
would be treated as the decree had not
attained finality, hence, the limitation was
not an issue to refuse execution.

23. It is also urged that the very fact
that the decree holders had moved an
application seeking condonation of delay
along with the execution application,
hence, this application in its first instance
ought to have been decided by the court
irrespective whether the judgment-debtors
had raised the objections of limitation or
not as it is the duty of the Court in terms of
Section 3 of the Limitation Act to consider
the issue of limitation first and foremost.

24. It is urged that the petitioners had
brought to the notice of the Court as well as
the Revisional Court that a hugely timebarred decree could never be executed, yet
the said issue was not decided which
compelled the petitioner to keep running
before
different
courts
for
seeking
adjudication which was not done. In the
aforesaid circumstances, the petitioners
filed the petition bearing No. 1644 of 2022,
however, while the same was pending, the
Executing Court went ahead to get the
decree executed through police aid which
1466 INDIAN LAW REPORTS ALLAHABAD SERIES
resulted in filing of the instant petition
bearing No. W.P. 541 of 2024 and as such
it is for the first time the correctness of the
approach of the subordinate courts is to be
tested and a conclusive finding be returned
as to whether a decree of 1982 could have
been entertained for execution in the year
2017 after a period of 30 years and odd,
hence, in light of the provisions of the
Limitation Act, the impugned orders are
bad and the petitions deserve to be allowed.

25. Per Contra, Sri R.R. Upadhyay,
learned counsel for the decree-holderprivate respondent nos. 3 to 6 submits that
the issue of limitation was raised by the
petitioners in their objections under Section
47 C.P.C. which came to be rejected and
thereafter the petitioner came forward by
filing a revision which was also dismissed.

26. Once, the issue of limitation had
been rejected, it was not open for the
petitioners to have raised the aforesaid
issue once again by moving a separate
application bearing Paper No. Ga-29 which
needless to say was dismissed and so also
the revision wherein it was held that the
issue of limitation already stood decided
and it could not be re-agitated again.

27. It is also urged that once the issue
of limitation had been decided while
dismissing the objections under Section 47
C.P.C. and also the revision emanating
there from, hence, the subsequent attempts
of the petitioners to raise the same issue
over
and
over
again
by
repeated
applications only indicates the malafides of
the petitioners who want to stall the
execution of the decree dated 21.01.1982. It
is also submitted that apart from the house
in question wherein the petitioners are in
occupation, there is large area which still
belongs to the petitioners which is adjacent
to the disputed property over which the
petitioners are attempting to encroach it.

28. It is further urged that since the
father of the private respondents namely
Harimohan Verma had expired and the
private respondents were residing away
from District Ayodhya, hence, they were
not aware and later when the application
for execution was filed along with an
application
under
Section
5
of
the
Limitation Act, the issue of limitation
having
been
decided,
in
such
circumstances, if the private respondents
not pressed their application under Section
5 of the Limitation Act, it could not have
any adverse impact on the petitioners who
nevertheless were the judgment-debtors
and were required to be evicted.

29. It is also urged that in so far as the
judgment debtors are concerned, it is not as
if any opportunity of hearing has been
denied to the petitioners and in the
aforesaid facts and circumstances, the
petitions are misconceived and deserves to
be dismissed since the two petitions are an
outcome
of
malafides
whereby
the
petitioners are attempting to rake up an
issue which already stands decided, hence,
in the aforesaid facts and circumstances,
the petitions are an abuse of process of law
and deserve to be dismissed.

30. The Court has heard the learned
counsel for the parties and also perused the
material on record.

31. The core question that requires
adjudication is regarding the issue of
limitation viz.a.viz the execution of a
decree.

32. In so far as the facts and dates are
concerned, there is no dispute in between
3 All. Smt. Shobha Srivastava & Ors. Vs. District & Session Judge Faizabad & Ors.
1467
the parties. Apparently, SCC Suit No. 57 of
1980 came to be decreed on 21.01.1982.
The same was challenged by the petitioners
through their predecessors-in-interest by
filing a revision which also came to be
dismissed on 12.05.1983 which was further
escalated by the predecessors of the
petitioners by means of W.P. No. 3408 of
1983 which also came to be dismissed on
22.01.1997.

33. It is also not disputed that the
decree-holder
filed
an
execution
application along with an application under
Section 5 of the Limitation Act on
19.07.2017 i.e. after 35 years from the date
of decree dated 21.01.1982 and nonetheless
after 22 years from the year the writ
petition was dismissed for want of
prosecution in the year 1997.

34. It is also not disputed that as per
Article 136 as mentioned in the schedule
appended with the Limitation Act, 12 years
limitation period is the provided for
executing any decree and the said Article
further provides that the time from which
the period begins to run is from the date the
decree becomes enforceable. At this stage,
it will also be relevant to notice the
provisions of Section 3, Section 5 and
Section 15 of the Limitation Act, 1963
which reads as under:-

"3.
Bar
of
limitation.-(1)
Subject to the provisions contained in
Sections 4 to 24 (inclusive), every suit
instituted,
appeal
preferred,
and
application made after the prescribed
period
shall
be
dismissed
although
limitation has not been set up as a defence.

(2) For the purposes of this
Act,-

(a) a suit is instituted,-

(i) in an ordinary case, when the
plaint is presented to the proper officer;

(ii) in the case of a pauper, when
his application for leave to sue as a pauper
is made; and

(iii) in the case of a claim against
a company which is being wound up by the
court, when the claimant first sends in his
claim to the official liquidator;

(b) any claim by way of a set-off
or a counter-claim, shall be treated as a
separate suit and shall be deemed to have
been instituted-

(i) in the case of a set-off, on the
same date as the suit in which the set-off is
pleaded;

(ii) in the case of a counter-claim,
on the date on which the counter claim is
made in court;

(c) an application by notice of
motion in a High Court is made when the
application is presented to the proper
officer of that court.
----------******-----------------******-----

5. Extension of prescribed period
in certain cases.-Any appeal or any
application, other than an application
under any of the provisions of Order XXI of
the Code of Civil Procedure, 1908, may be
admitted after the prescribed period if the
appellant or the applicant satisfies the
court that he had sufficient cause for not
preferring the appeal or making the
application within such period.

Explanation.-The fact that the
appellant or the applicant was misled by
any order, practice or judgment of the High
Court in ascertaining or computing the
prescribed period may be sufficient cause
within the meaning of this section.

----------******-----------------******-
----

15. Exclusion of time in certain
other cases.-(1) In computing the period
of limitation for any suit or application for
1468 INDIAN LAW REPORTS ALLAHABAD SERIES
the execution of a decree, the institution or
execution of which has been stayed by
injunction or order, the time of the
continuance of the injunction or order, the
day on which it was issued or made, and
the day on which it was withdrawn, shall be
excluded.

(2) In computing the period of
limitation for any suit of which notice has
been given, or for which the previous
consent or sanction of the Government or
any other authority is required, in
accordance with the requirements of any
law for the time being in force, the period
of such notice or, as the case may be, the
time required for obtaining such consent or
sanction shall be excluded.

Explanation.-In excluding the
time required for obtaining the consent or
sanction of the Government or any other
authority, the date on which the application
was made for obtaining the consent or
sanction and the date of receipt of the
order of the Government or other authority
shall both be counted.

(3) In computing the period of
limitation for any suit or application for
execution of a decree by any receiver or
interim receiver appointed in proceedings
for the adjudication of a person as an
insolvent or any liquidator or provisional
liquidator appointed in proceedings for the
winding up of a company, the period
beginning with the date of institution of
such proceeding and ending with the expiry
of three months from the date of
appointment of such receiver or liquidator,
as the case may be, shall be excluded.

(4) In computing the period of
limitation for a suit for possession by a
purchaser at a sale in execution of a
decree, the time during which a proceeding
to set aside the sale has been prosecuted
shall be excluded.

(5) In computing the period of
limitation for any suit the time during
which the defendant has been absent from
India and from the territories outside India
under
the
administration
of
Central
Government shall be excluded."

35. The conjoint impact of the
aforesaid provisions would be that any
application made after the prescribed
period
of
limitation
subject
to
the
provisions contained in Section 4 to
Section 24 of the Limitation Act are liable
to be dismissed even though the limitation
may not have been set-up as a defense,
meaning thereby that it is incumbent upon
the court to see the issue of limitation even
though it may not have been raised as a
defence by the defending party.

36. Section 5 of the Act of 1963
clearly provides that that there cannot be an
extension of the prescribed period of
limitation in respect of an application
moved under Order 21 of C.P.C. meaning
clearly that provisions for extension of
time/condonation of delay is not applicable
on an application filed originally to execute
a decree in terms of Order 21 C.P.C.,
however, in order to compute the period of
limitation, if Section 15 is seen with Article
136 mentioned in the schedule appended to
the Limitation Act, it would be clear that
for
the
purposes
of
computing
the
limitation for any suit or application for
execution of a decree, the institution or
execution of which has been stayed by an
order of injunction, it shall be excluded
including the day on which such order was
passed as well as the day on which it was
withdrawn.

37. If the aforesaid principle is
applied in the instant case, it would be
absolutely clear that the decree dated
3 All. Smt. Shobha Srivastava & Ors. Vs. District & Session Judge Faizabad & Ors.
1469
21.01.1982 became enforceable on the said
date and the period of limitation would
commence from 21.01.1982 and thus 12
years would expire in the year 1994.
Though, it is stated by the petitioners that
there was no stay on the execution of the
decree while the petitioners had preferred a
revision which came to be dismissed in the
1983 and even in the W.P. 3408 of 1983
was dismissed for want of prosecution on
22.01.1997 even then if the period of 12
years is reckoned from the year 1997 even
then it would expire in the year 2009.

38. Thus, it would be seen that
considering the issue of limitation and its
computation from any angle, it would
reveal that the application for execution
filed on 19.07.2017 was much beyond the
period of limitation as prescribed in the
Limitation Act.

39. It is also to be seen that apparently
the Munsrim of the court had given his
report to the effect that the application for
execution was time barred. Once, such a
report was placed by the Munsrim, it was
incumbent upon the Executing Court to
examine the issue in the first instance as
required in terms of Section 3 of the
Limitation Act. The decision of the Apex
Court in (i) SBI v. B.S. Agriculture
Industries (I), (2009) 5 SCC 121; (ii)
Noharlal Verma v. Distt. Coop. Central
Bank Ltd., (2008) 14 SCC 445; (iii)
Chandi Prasad v. Jagdish Prasad, (2004)
8 SCC 724 ; (iv) Bimal Kumar v.
Shakuntala Debi, (2012) 3 SCC 548 will
be relevant to be noticed wherein it has
been held that it is the duty of the court in
terms of Section 3 of the Limitation Act to
examine the limitation irrespective whether
the Limitation has been taken as a defence
or not. The relevant paras of the said
reports read as under:-

The Apex Court in SBI v. B.S.
Agriculture Industries (I), (2009) 5 SCC
121 has held as under:-

12. As a matter of law, the
consumer forum must deal with the
complaint on merits only if the complaint
has been filed within two years from the
date of accrual of cause of action and if
beyond the said period, the sufficient cause
has been shown and delay condoned for the
reasons recorded in writing. In other
words, it is the duty of the consumer forum
to take notice of Section 24-A and give
effect to it. If the complaint is barred by
time and yet, the consumer forum decides
the complaint on merits, the forum would
be committing an illegality and, therefore,
the aggrieved party would be entitled to
have such order set aside.

13. In Union of India v. British
India Corpn. Ltd. [(2003) 9 SCC 505]
while dealing with an aspect of limitation
for an application for refund prescribed in
the Business Profits Tax Act, 1947 this
Court held that the question of limitation
was a mandate to the forum and,
irrespective of the fact whether it was
raised or not, the forum must consider and
apply it.

14. In HUDA v. B.K. Sood
[(2006) 1 SCC 164] this Court while
dealing with the same provision viz. Section
24-A of the Act, 1986 held : (SCC pp. 16768, paras 10-12)

"10.
Section
24-A
of
the
Consumer Protection Act, 1986 (referred to
as 'the Act' hereafter) expressly casts a
duty on the Commission admitting a
complaint, to dismiss a complaint unless
the complainant satisfies the District
Forum, the State Commission or the
National Commission, as the case may be,
that the complainant had sufficient cause
for not filing the complaint within the
1470 INDIAN LAW REPORTS ALLAHABAD SERIES
period of two years from the date on which
the cause of action had arisen.

11. The section debars any fora
set up under the Act, admitting a complaint
unless the complaint is filed within two
years from the date of which the cause of
action has arisen. Neither the National
Commission nor had the State Commission
considered the
preliminary
objections
raised by the appellant that the claim of the
respondent was barred by time. According
to the complaint filed by the respondent,
the cause of action arose when, according
to the respondent, possession was received
of the booth site and it was allegedly found
that an area less than the area advertised
had been given. This happened in January
1987. Furthermore, the bhatties which
were alleged to have caused loss and
damage to the respondent, as stated in the
complaint, had been installed before 1989
and removed in 1994. The complaint before
the State Commission was filed by the
respondent in 1997, ten years after the
taking of possession, eight years after the
cause of alleged damage commenced and
three years after that cause ceased. There
was not even any prayer by the respondent
in his complaint for condoning the delay.

12. Therefore, the claim of the
respondent on the basis of the allegations
contained in the complaint was clearly
barred by limitation as the two year period
prescribed by Section 24-A of the Act had
expired much before the complaint was
admitted by the State Commission. This
finding is sufficient for allowing the
appeal."

15. In a recent case of Gannmani
Anasuya
v.
Parvatini
Amarendra
Chowdhary [(2007) 10 SCC 296] this
Court highlighted with reference to Section
3 of the Limitation Act that it is for the
court to determine the question as to
whether the suit is barred by limitation or
not irrespective of the fact that as to
whether such a plea has been raised by the
parties; such a jurisdictional fact need not
be even pleaded."

The Apex Court in Noharlal Verma
v. Distt. Coop. Central Bank Ltd., (2008)
14 SCC 445 and the relevant portion of the
said report read as under:-

32. Now, limitation goes to the
root of the matter. If a suit, appeal or
application is barred by limitation, a court
or an adjudicating authority has no
jurisdiction, power or authority to entertain
such suit, appeal or application and to
decide it on merits.

33. Sub-section (1) of Section 3 of
the Limitation Act, 1963 reads as under:

"3.
Bar
of
limitation.-(1)
Subject to the provisions contained in
Sections 4 to 24 (inclusive), every suit
instituted,
appeal
preferred,
and
application made after the prescribed
period
shall
be
dismissed
although
limitation has not been set up as a
defence."

(emphasis supplied)

Bare
reading
of
the
aforesaid
provision leaves no room for doubt that if a
suit is instituted, appeal is preferred or
application is made after the prescribed
period, it has to be dismissed even though
no such plea has been raised or defence
has been set up. In other words, even in
absence of such plea by the defendant,
respondent or opponent, the court or
authority must dismiss such suit, appeal or
application, if it is satisfied that the suit,
appeal or application is barred by
limitation."
3 All. Smt. Shobha Srivastava & Ors. Vs. District & Session Judge Faizabad & Ors.
1471

The Apex Court again in Chandi
Prasad v. Jagdish Prasad, (2004) 8 SCC
724 has observed as follows:-

"18. The reasons for bringing on
the statute-book, the present Article 136
may be noticed. By reason of the said
amendment, the filing of the execution
petition has been simplified and the
difficulties faced for computation which
used to arise for grant of stay or not have
become immaterial. In terms of Article 136
of the Act, thus, a decree can be executed
when it becomes enforceable.

19. Article 136 substantially
reproduces the provisions of Section 48(1)
of the Code of Civil Procedure which by
reason of the Act stands repealed. In that
view of the matter, Parliament thought it fit
to provide for one period of limitation for
an application for execution in stead and
place governing each of the several
execution applications which the decreeholder can make within a period of 12
years.

20. It is not disputed that all
decrees, be they original or appellate, are
enforceable. Once a decree is sought to be
enforced for the purpose of execution
thereof irrespective of being original or
appellate, the date of the decree or any
subsequent order directing any payment of
money or delivery of any property at a
certain date would be considered to be the
starting period of limitation.

21. It is axiomatic true that when
a judgment is pronounced by a High Court
in exercise of its appellate power upon
entertaining the appeal and a full hearing
in the presence of both parties, the same
would replace the judgment of the lower
court and only the judgment of the High
Court would be treated as final. (See U.J.S.
Chopra v. State of Bombay [AIR 1955 SC
633 : (1955) 2 SCR 94 : 1955 Cri LJ 1410]
.)

22. When an appeal is prescribed
under a statute and the appellate forum is
invoked and entertained, for all intent and
purport, the suit continues.

Merger

23. The doctrine of merger is
based on the principles of propriety in the
hierarchy of the justice-delivery system.
The doctrine of merger does not make a
distinction between an order of reversal,
modification or an order of confirmation
passed by the appellate authority. The said
doctrine postulates that there cannot be
more than one operative decree governing
the same subject-matter at a given point of
time.

24. It is trite that when an
appellate court passes a decree, the decree
of the trial court merges with the decree of
the appellate court and even if and subject
to any modification that may be made in
the appellate decree, the decree of the
appellate court supersedes the decree of
the trial court. In other words, merger of a
decree takes place irrespective of the fact
as to whether the appellate court affirms,
modifies or reverses the decree passed by
the trial court. When a special leave
petition is dismissed summarily, doctrine of
merger does not apply but when an appeal
is dismissed, it does. [See V.M. Salgaocar
and Bros. (P) Ltd. v. CIT [(2000) 5 SCC
373 : AIR 2000 SC 1623] .]"

Similarly, the Apex Court in
Bimal Kumar v.