IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 529 of 2009()
1. VALSAMMA KURIAN ,AGED 59,
... Petitioner
2. JOHNEY J VALOORAN, AGED 30 YEARS
3. HONEY J.VALOORAN, AGED 24, D/O.LATE
Vs
1. ST.RAPHEAL CHURCH THYKOODAM,
... Respondent
2. FR.ZACCHARIAS PAVANATHARA,
3. FRANCE KOTTAMOPLACKAL, S/O.OUSEPH
4. MANUEL THIRUNILATH ALIAS NELSON,
5. RANI.J.VALOORAN, D/O.LATE JOSE VALOORAN
For Petitioner :SRI.K.K.CHANDRAN PILLAI
For Respondent :SRI.C.T.JOSEPH
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :18/12/2009
O R D E R
C.R.
S.S.SATHEESACHANDRAN, J.
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C.R.P.NO.529 OF 2009 (B)
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Dated this the 18th day of December, 2009
O R D E R
The order challenged in the revision arises from an
application moved by the judgment debtors in E.P.No.404 of
2004 in O.S.No.897 of 1995 passed by the learned Principal
Munsiff, Ernakulam. Pursuant to the execution of the decree
passed in the above suit for eviction, the judgment debtors
were evicted from a Mill situate in the plaint schedule
property. Delivery was effected in the absence of the
judgment debtors and, then, extensive damages were caused
to their properties and machineries was the case of the
judgment debtors to claim compensation of Rs.2,40,000/- from
the decree holders by filing an application before the
execution court. Machineries removed from the Mill situate in
the plaint schedule property had been entrusted by the Amin
to the decree holders and since the judgment debtors failed to
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take delivery of the articles, an application was moved by
them for issuing direction to the judgment debtors to receive
such articles, and in default dispose them of by sale
appointing an Advocate Commissioner. The application moved
by the judgment debtors and also that of the decree holders as
aforesaid were jointly considered and disposed under a
common order by the learned Munsiff. The application of the
judgment debtors claiming compensation was dismissed and
that of the decree holders was allowed, directing the judgment
debtors to receive all the articles, failing which, the articles
were directed to be sold by appointing a Commission and
depositing of the sale proceeds in the court. As against the
order dismissing the application moved for compensation, the
judgment debtors, three of them, impleading the remaining
judgment debtor as a co-respondent with the decree holders
have filed this revision.
2. I heard the counsel on both sides. A preliminary
question emerges for consideration as regards the
maintainability of the petition filed by the judgment debtors to
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claim compensation for the alleged loss and damages
sustained on account of the removal of the machineries from
his Mill in execution of the decree through court at the
instance of the decree holders. Admittedly, the delivery giving
rise to the cause of auction for the claim of compensation took
place on 16.1.2006 and the application for compensation by
the judgment debtors was moved three years later. The
question emerges for consideration is whether such a claim
petition at the instance of the judgment debtors is
entertainable. The execution court had allowed the
application moved under Section 5 of the Limitation Act for
condoning the delay in filing the claim petition, and so much
so, that question is not of much significance in entertaining
this revision is the submission made by the learned counsel for
the revision petitioners/judgment debtors. I cannot accept
that submission. The question to be considered is whether a
claim petition mooted by the judgment debtors, which no
doubt, was an application under Section 47 of the CPC
imputing loss and damages on account of the act committed by
the decree holders in executing the decree, which has been
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filed beyond the period of limitation of three years, is
entertainable or not. Whether the delay in filing such an
application under Section 47 of the CPC can be condoned by
resort to Section 5 of the Limitation Act is also of vital
significance. Section 3 of the Limitation Act interdicts a court
from entertaining a suit or proceedings whether or not any
objection is raised beyond the prescribed period of limitation.
So far as the claim petition canvassed by the judgment
debtors, the period of limitation is three years as governed by
Article 137 of the Limitation Act is not disputed. Whether an
application under Section 47 of the CPC for raising a claim
beyond the period prescribed in Article 137 of the Limitation
Act advancing a case that in execution of the decree the
claimant had suffered injury or damages is entertainable is
the question to be considered. So far as the suit for damages,
the prescribed period of limitation is three years, and beyond
that period, there cannot be any condonation of delay by
resort to Section 5 of the Limitation Act. Similar is the
situation when a claim is raised under Section 47 of the CPC
for entertaining a claim for compensation setting forth a case
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that in execution of the decree claimant has suffered damages
Section 5 of the Limitation Act cannot extent or condone any
delay beyond the prescribed period in entertaining such a
claim. The execution court entertaining and allowing the
application moved by the judgment debtors under Section 5 of
the Limitation Act has exercised authority without jurisdiction.
Claim petition filed under Section 47 of the CPC beyond the
period of three years ought to have been dismissed in limini
and there was no question of entertaining such petition
condoning the delay under Section 5 of the Limitation Act. In
that view of the matter, I find that the revision challenging the
dismissal of the claim petition by the court below does not
require to be examined with reference to its merits as the
claim itself was barred by limitation. Revision is accordingly
dismissed.
S.S.SATHEESACHANDRAN
JUDGE
prp