KANAGAVALLIAMMAL AND ORS versus R. BALASUBRAMANIAN

Citation: [2008] 5 S.C.R. 511 · Decided: 26-03-2008 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Case Allowed
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Judgment (excerpt)

[2008] 5 S.C.R. 511 
_.__.__ 
KANAGAVALLIAMMAL AND ORS. 
A 
II. 
R. BALASUBRAMANIAN 
(Civil Appeal No. 2106 of 2008) 
MARCH 26, 2008 
B 
.,, 
[DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.] 
Execution - Limitation - Execution Petition (EP) filed 
beyond prescribed period of /imitation - Maintainability of -
Held: Not maintainable - Contention that it was continuation c 
of earlier EPs not tenable, as one EP filed earlier was 
dismissed for default and another was dismissed as not 
pressed and as such no application for recalling or restoration 
of any EP was pending on the date of commencement of the 
Act- Pondicherry Limitation (Repeal of Local Laws) Act, 1994 D 
- s.4(b)(i). 
"' 
_,. 
On 22.4.1983, a decree was passed. In 1984, 
Execution Petition was filed which was dismissed as not 
pressed. In 1986, another EP was filed but the same was 
dismissed for default on 28.3.1994. EA was filed on 
E 
29.4.1994 to restore the E.P. The said EA was dismissed 
as not pressed on 31.10.1994. Subsequently EP No.177 
was filed on 10.11.1995. The appellant-Judgment debtor 
took stand that EP was barred by limitation. 
The respondent's contention that the EP was within 
F 
:,i 
time permitted under Pondicherry Limitation (Repeal of 
Local Laws) Act, 1994 was accepted by the Executing 
' 
Courts. Appellant filed revision before the High Court. 
The High Court took the view that the E.P. No. 177 G 
which was filed on 10.11.1995 was continuation of earlier 
E.P. filed in 1986 and other Execution Petitions. Therefore 
.j 
s.4 of the Act is not applicable to EP No. 177 of 1995 . 
In appeal to this Court, appellant contended that the 
511 
H 
512 
SUPREME COURT REPORTS 
[2008) 5 S.C.R. 
A date of commencement of the Act was 1.3.1995 and 90 
-+ -
days time was permitted to file the Execution Petition. E.P. 
B 
No. 177 of 1995 was filed on 10.11.1995 which was beyond 
the period of 90 days. 
Allowing the appeal, the Court 
HELD: The High Court is not correct in its view that 
E.P. No. 177 of 1995 was a continuation of earlier EP No. 
· 369 of 1986 and other Execution Petitions. In fact EP 
No.369 of 1986 was dismissed for default on 28.3.1994 
c and the E.P. No. 238 of 1994, filed to restore it, was 
dismissed as not pressed. Therefore, there was no 
Execution Petition. For that matter no application for 
recalling, or restoration of any EP was pending on the 
date of commencement of the Act. E.P. No. 177 of 1995 
having been filed beyond the prescribed period of 
D limitation was not maintainable and deserves to be 
dismissed. [Paras 9,10] [514-H; 515-A-B] 
E 
F 
CIVIL APPELLATE JURISDICITON : Civil Appeal No. 
2106 of 2008. 
From the final Judgment and Order dated 15.11.2006 of 
the High Court of Judicature at Madras in CRP No. 1110 of 
2003. 
V. Krishnamurthy, Senthil Jagadeesan for the Appellants. 
The Judgment of the Court was delivered by 
DR. ARIJIT PASAYAT, J. 1. Leave granted. 
2. Challenge in this appeal is to the order passed by a 
learned Single Judge of the Madras High Court dismissing the 
G Revision Petition filed by the appellants under Section 115 of 
the Code of Civil Procedure, 1908 (in short the 'CPC') 
.Challenge in the Revision Petition was to the order of learned 
Additional Sub Judge, Pondicherry dated 7.7.2003 in Execution 
Petition No. 177 of 1995 in OS No. 40 of 1981 ordering 
H attachment of Execution Petition schedule mentioned properties. 
I 
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KANAGAVALLIAMMAL AND ORS. v. R 
.513 
BALASUBRAMANIAN [DR. ARIJIT PASAYAT, J.] 
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Appellants, who were the petitioners before the High Cqurt, are A 
the judgment debtors. 
· 
· 
3. Backgroundfacts .in a nutshell are as follows: 
Decree was passed on 22.4.1983 in OS No. 40 of 1981. 
EP No. 19 of 1984 was filed which was dismissed as not 
B 
pressed on 16.4.1984. E.P.No. 101 of 1984 was closed on 
. 
' 
. 
. 
" 
10.8.1984. E.P. No. 369 of 1986 was filed on 24.10.1986 but 
the same was dismissed for default on 28.3.1994. E.A. No. 238 
of 1994 was filed on 29.4.1994 to restore the E.P. The said 
E.A. was dismissed as not pressed on 31.10.1994. c 
Subsequently, EP No. 177 of 1995 was filed on 10.11.1995. 
Appellants took the stand that the Execution Petition is barred 
by limitation. The respondent took the stand that the petition 
was within time permitted underiPondicherry Limitation (Repeal 
of Local Law) Act, 1994 (in short the 'Act').Reference was made D 
under Section 4(b)(i) of the Act. The executing c.ourt accepted 
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the stand. The Revision Petition as noted above
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