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Valsamma Kurian vs St.Rapheal Church Thykoodam on 18 December, 2009

Kerala High Court
Valsamma Kurian vs St.Rapheal Church Thykoodam on 18 December, 2009
       

  

  

 
 
  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.
                 -------------------------------
               C.R.P.NO.529 OF 2009 (B)
               -----------------------------------
      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

CRP.529/09 2

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

CRP.529/09 3

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

CRP.529/09 4

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

CRP.529/09 5

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

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