Execution of Decree of Mandatory Injuction

Querist : Anonymous (Querist) 22 December 2010 This query is : Resolved
My client borrowed a loan of Rs.15000/- from kancheepuram branch of a nationalised bank in the year 1976 by way of submitting the ORIGINAL title deeds of a property. the secured property is situated in salem, so he was advised to submit his original title deeds with the bank's salem branch and also create an EM charge there itself.

subsequently the loan became NPA and the bank filed suit in the sub court salem in the year 1990. the bank had filed the suit only with the strength of a the pronote and did not file a Mortgage suit by filing the original title deeds of my client.

my client also did not want to contest the suit instead filed an admission memo stating that he admits the suit claim and will pay the dues in six months and the suit was decreed recording the admission memo.

since then my client is contacting the bank with an intention to pay the dues as admitted in 1990 and sought the bank to show him his original title deeds since it was not even filed in the court. but the said bank has failed to show the original title deeds of my client. we were informed orally that they have lost the documents and are not able to trace it. but no manager in the bank is ready to give it in writing as i might invite some accountability for them from the management of the bank. this was the status till 2006.

in the year 2006 only i came to know about all these facts and since the limitation period for filing an EP against 1990 decree was barred i again filed a suit in munsif court salem for

1. to declare that the decree dated 1990 was time barred

2. mandatory injunction directing the bank to return all the original title deeds to my client.

in this suit though the bank entered appearance through its counsel and later was set exparte for non filing of written statement. hence the suit was decreed as prayed for. since then the bank has not even taken any steps to set aside the exparte order till date.

subsequently even after the receipt of my legal notice and several RTI applications from my client in this regard the bank failed to return the documents till date. even though in some replies to my client's RTI application the bank has accepted that the documents were lodged with their salem branch and for the past 4 years they have stated that they are trying to locate it and return it once it is located.

hence my client has met the manager of the bank in person and he was informed orally by the manager that he accepted that the documents are not able to be traced and it will not be possible for them to give the same in writing due to accountability as who has lost the documents.

hence we had no other go than to file an EP in pursuance of the said decree passed against the bank in 2006.

at this juncture understood that i had made a mistake of thinking that the limitation for filing EP against any decree is 12 years. but now only i came to know that (after the munsif has returned my EP petition stating) the limitation period for filing EP against any decree of mandatory injunction is only 3 years and no condone delay petition is applicable in this aspect.

so this is the present situation. i admit that ignorance of law is not an excuse.

My doubts are as follows:

1. is there any ruling available in support of filing EP against a decree of mandatory injunction excusing the delay after the expiry of 3 years period of limitation ?

2. there has been numerous communcations and RTI applications and replies between my client and the bank in this regard till october 2010, so can the last communications during october 2010 can be deemed to have saved the limitation or extented the limitation ? whether any one has come across any rulings in this aspect.

3. as of now my client wants the documents badly as he is planning to construct a house in that place by way of raising a loan from any bank, in such situation he will have to submit originals of his title deeds to the funding bank ? (there is no registered entries regarding the borrowal of my client like regd MOE etc, the EC doesnot reflect any regd entires)

4. can anyone please suggest what is the way out to collect the documents from the bank or get a written communication from the bank stating that they have only lost the original title deeds of my client with the help of which my client can raise a loan from a bank by submitting the certified copies of his title deeds ?

since the client happens to be my very close friend i will have to solve this by any means. hope our experts will surely find a way out for me to solve this issue.

pls feel free to seek any further clarification relating to facts in this regard, if need be.

thanks in advance.

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Raj Kumar Makkad (Expert) 22 December 2010
Have you copy of amendment of CPC vide which the limitation to execute the civil court decree has been reduced from 12 years to 3 years?

I think munsif court is misunderstood. I have gone through latest amendments but court not find out any such amendment. May be in your State. So the decree in hand can be duly got executed against judgment debtor bank officials. If Munsif court dismisses it then file its appeal.

As your client is in urgent need of either original documents or the certification from the bank that those have been lost so why do you not file an appeal before next Appellate Authority under RTI Act wherein bank shall have to submit its reply and shall have to concede about the loss of those documents. This is the only urgent way to force the bank to certify.

s.subramanian (Expert) 22 December 2010
Dear Mr.Makkad,

The time limit for this is not prescribed in or by the CPC. It is the Limitation Act which stipulates the period of three years. The court is perfectly right and legal in saying that the decree is time barred.This is the law applicable to the whole country with a sole exception of Jammu and Kashmir.

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