GUWAHATI, India, Aug. 12 -- Gauhati High Court issued the following order on July 14:
1. Heard Mr. P. Khataniar, learned counsel for the petitioner and also heard Mr. J.C. Gaur, learned counsel for the respondent.
2. In this civil revision petition, under Section 115 of the Code of Civil Procedure, the petitioner has challenged the judgment and order dated 09.08.2024, passed by the learned Civil Judge (Sr. Division) No.1, Kamrup (M), Guwahati. It is to be noted here that vide impugned judgment and order dated 09.08.2024, the learned Civil Judge (Sr. Division) No.1, Kamrup(M), Guwahati (hereinafter referred to as the 'Executing Court') has dismissed the petition filed under Section 47 of the CPC.
3. The background facts leading to filing of the present revision petition is briefly stated as under:- "The respondent/decree holder had filed a summary suit against the petitioner/judgment debtor No.1 herein, and against the Ambalal Properties & Investments (judgment debtor No.2) for recovery of a sum of Rs.54,98,800/-. The said suit is based on an agreement entered into by the respondent and the judgment debtor No.2. In the said summary suit, the learned Civil Judge No.1, Kamrup(M), Guwahati, vide order dated 23.12.2005 had decreed the suit ex-parte, without taking any evidence. Thereafter, the respondent herein as decree holder, filed a Money Execution Case, No.1/2006, and thereby, put the decree dated 23.12.2005, in execution. Though, at first, the respondent sought the decree to be executed against the landed property of the judgment debtor No.2/defendant No.2, later on, the respondent got an order of attachment of Rs.1,45,54,237.98 belonging to the petitioner/judgment debtor No.1, on 18.05.2022, behind their back and only at that stage the petitioner/judgment debtor No.1 company for the first time came to know about the decree/order dated 23.12.2005. And thereafter, they have filed an objection under Section 47 of the Code of Civil Procedure on 14.06.2022, upon which the learned Executing Court has registered the Misc.(J) Case No.492/2022, on the ground that the decree sought to be executed is a nullity and to be declared as null and void and non-executable being passed in contravention of the provision of Section 293(1)(d) of the Companies Act, 1956 and also in violation of the provision of Section 7(d) of the Assam Money Lenders' Act, 1934. Thereafter, vide impugned judgment and order dated 09.08.2024, the learned Executing Court had dismissed the petition, filed under Section 47 of the Code of Civil Procedure.
4. Being aggrieved, the petitioner/judgment debtor No.1 has approached this Court by filing the present petition, mainly on the following grounds amongst others:-
(i) That, the respondent herein has fraudulently obtained the decree and the learned Executing Court misread and misinterpreted facts and the evidence on record and arrived at a perverse finding.
(ii) That, the learned Executing Court has committed gross error in law in holding that the period for limitation for filing a petition under Section 47 CPC ought to be governed by Article 137 of the Limitation Act, entailing a three years limitation period, whereas it provides for only starting point of limitation from the date from which right to apply accrues and that the cause of action for filing the objection under Section 47 of the CPC arose on 02.06.2022, when the petitioner/judgment debtor No.1 for the first time came to know about the decree under execution and also about the order dated 18.05.2022.
*Rest of the document can be viewed at: (https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=bzPoyUlszYLCUcCpirIpqBre92nKwRLWZNA7N0PPD05LiijfOtpcK810Z8bLXkm1&caseno=CRP/94/2024&cCode=1&cino=GAHC010193132024&state_code=6&appFlag=)
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