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CASE NO.: Appeal (civil)  2106 of 2008

PETITIONER: Kanagavalliammal & Ors.

RESPONDENT: R. Balasubramanian

DATE OF JUDGMENT: 26/03/2008

BENCH: DR. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: JUDGMENT (Arising out of SLP (C) No. 3426/2007)

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 Revision  Petition filed by the appellants under Section 115 of the Code of  Civil Procedure, 1908 (in short the \021CPC\022) .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 attachment of Execution  Petition schedule mentioned properties.  Appellants, who were  the petitioners before the High Court, are the judgment debtors. 3.      Background facts 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 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.  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 under Pondicherry Limitation (Repeal of Local Law)  Act, 1994 (in short the \021Act\022).  Reference was made under Section  4(b)(i) of the Act.  The executing court accepted the stand.  The  Revision Petition as noted above was filed before the High Court  which dismissed the same.         The High Court took the view that the E.P. No. 177 of 1995  which was filed on 10.11.1995 was continuation of earlier E.P.  No. 369 of 1986 and other Execution Petitions.  Therefore Section  4 of the Act is not applicable to EP No. 177 of 1995.       4.      Learned counsel for the appellants submitted that the date  of commencement of the Act was 1.3.1995 and 90 days time was  permitted to file the Execution Petition.  E.P. No. 177 of 1995 was  filed on 10.11.1995 which is beyond the period of 90 days.       5.      The controversy lies within a very narrow compass. 6.      Section 4(b)(i) reads as follows: \023(4) Notwithstanding anything contained in this  Savings Act-

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(b) any appeal or application for which the period of  limitation prescribed under the Limitation Act is  shorter than the period of limitation prescribed by  the local laws may be preferred or made,

(i)     within such shorter period or within a period  of ninety days next after the commencement of  this Act, whichever is longer\024

7.      Section 5(b) of the Act also has relevance and reads  as follows: \023(5) Nothing in this Act shall,     (a) x x x x      (b) enable any suit, appeal or application  to be instituted, preferred or made, for which  the period of limitation prescribed by the local  laws expired before the commencement of this  Act\024             8.      The High Court itself has noted in para 10 as  follows:

       \02310. It is appropriate to refer to the following dates:

       Longer Limitation French Law            =       30 years               Shorter Limitation in Indian         Limitation Act                                  =       12 years

       As per the amended Act, time         limit under French Law         (22.4.1983 + 30 years)                  =       22.4.2013

       Shorter Limitation of Indian         Limitation Act         (22.4.1983 + 12 years)                  =       22.4.1995

       90 days from 1.3.95 or 3 months         application ought to have been         filed                                                   =       01.6.1995\024

9.      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 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. 10.     That being so, the High Court was not justified in its view.   The impugned order of the High Court is set aside.  The E.P. No.  177 of 1995 having been filed beyond the prescribed period of  limitation was not maintainable and deserves  to be dismissed.       11.     The appeal is allowed without any order as to costs.