This Civil Revision Petition has been filed against the order dated 02.03.2013 passed in E.P.SR.No.13574 of 2013 in O.S.No.12904 of 1996 on the file of the learned Subordinate Judge, Poonamallee, rejecting the un-numbered Execution Petition. The revision petitioner is the plaintiff/decree-holder.
2. The plaintiff has filed the suit being O.S.No.12904 of 1996 on the file of the City Civil Court, Chennai for recovery of a sum of Rs.2,70,921/- together with interest. The suit was decreed on 10.09.1997 directing the respondent/judgment debtor to pay a sum of Rs.2,70,921/- together with interest at the rate 5% from the date of plaint till the date of realisation.
3. According to the petitioner, in order to realise the decree amount, the petitioner/plaintiff has filed E.A.No.3277 of 2012 before the Civil Civil Court, Chennai to transmit the decree to the file of Sub-Court, Poonamallee, where immovable properties owned by the respondent situate. By an order dated 18.09.2012, the learned IX Assistant Judge, ordered transmit the decree. Thereafter, the plaintiff has filed execution petition being E.P.SR.No.13574 of 2012 for realisation of a sum of Rs.5,18,728/- by attaching immovable properties of the defendant situated within the jurisdiction of Sub-Court, Poonamallee.
4. By an order dated 02.03.2013, the Executing Court, rejected the un-numbered Execution Petition holding that the same was barred by limitation. Aggrieved by the same, the plaintiff has filed the present Civil Revision Petition.
5. I heard Mr.T.V.Vineethkumar, learned counsel for the petitioner. No representation on behalf of the respondent. Perused the materials available on record.
6. The learned counsel for the petitioner submitted that the Executing Court had failed to see that question of limitation is a mixed question of fact. The City Civil Court has not sent the entire records to the Sub-Court, Poonamallee and the Executing Court erred in coming to a wrong conclusion that E.A.No.3277 of 2012 to transmit and handover the Execution Petition was filed on 10.08.2012 based on the certificate appended to the order of transmission, which was an error committed by the Executing Court. He would submit that the Execution Petition was filed well within the period of limitation and prayed for setting aside the order of the Executing Court.
7. It is to be noted that the suit was decreed on 10.09.1997 and the plaintiff had filed E.A.No.3277 of 2012 to transmit the decree to the Sub-Court, Poonamallee for realisation of the decree amount and the same was ordered on 18.09.2012 by the learned X Assistant Judge, City Civil Court, Chennai. After obtaining a certificate, the plaintiff has filed E.P.Sr.No.13574 of 2013 before the Sub-Court, Poonamallee on 15.12.2012. The aforesaid dates would clearly indicate that the plaintiff has filed the Execution Petition beyond the period of 12 years.
8. It appears from the order under revision, the plaintiff has already filed E.P.No.105 of 2008 and the same was dismissed for not taking steps. After the dismissal of E.P.No.105 of 2008, the plaintiff has not taken efforts to file a fresh Execution Petition for realisation of the amount.
9. In its order, the Executing Court observed that after the dismissal of E.P.No.105 of 2008, the plaintiff has filed petition under Order 3, Rule 2 of C.P.C. to contest the E.P. In the aforesaid petition, the plaintiff has stated that E.P.SR.No.43957 of 2012 was filed before the City Civil Court, Chennai and the same was returned by the City Civil Court on the point of jurisdiction. The plaintiff has not given the exact date of filing of the E.P. and whether the returned E.P. was represented or not.
10. It is settled that application for execution has to be filed in the transferee Court, subject to the period prescribed under
Article 136 of the Limitation Act, failing which the decree would become inexecutable, being hit by the Law of Limitation.
11. The transmission order is a ministerial and not a judicial order and an order passed by the transferring Court is not a final adjudication on limitation and an application for execution filed in the transferee Court more than 12 years after the decree is beyond time and cannot be considered a continuation of the prior applications before the transferring Court.
12. In the case on hand, the suit was decreed on 10.09.1997 and the present E.P.SR.No.13574 of 2012 was filed on 15.12.2012 beyond 12 years as prescribed under
Article 136 of the Limitation Act and hence liable to be rejected as not maintainable, which the Executing Court has rightly done. No valid grounds are put forth by the plaintiff to interfere with the order of the Executing Court. Hence, the Civil Revision Petition is liable to be dismissed.
13. In the result, the Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
23.02.2017 Note:Issue order copy on 25.07.2018 vs Index : Yes/No Internet : Yes/No To The Subordinate Court, Poonamallee.
M.V.MURALIDARAN, J.
vs C.R.P.(NPD) No.2771 of 2013 and M.P.No.1 of 2013 23.02.2017