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2015 (5) TMI 325 - CALCUTTA HIGH COURTReview application - Matter becomes functus officio as soon as the judgment is delivered and order is passed - Execution application is time barred as the Article 136 of the Limitation Act 1963 provided for a period of 12 years - Limitation period for payment of dividend is three years under Article 113 of the Limitation Act - It is settled law that executing Court cannot go behind the decree - Non payment of dividend - Held that:- We have heard the rival contentions of the parties. We have carefully scrutinized the records and we find that there are some substance in the argument of Mr. Hoon. We also find that in the Judgment dated 21st May, 1981 the Hon’ble Division Bench observed that “Whether an application is barred by Act 137 of the Limitation Act” and also some passage of the said Division Bench order where it is stated “…. In our view, if the same state of affairs of the Company continuous or in other words if any wrong committed before three years of the presentation of the application continuous to be in operation, there will be no question of limitation. We do not accept the broad proposition that the events which had taken place three years before the presentation of application are barred by Article 137 of the Limitation Act”. We find Section 47 of the Code of Civil Procedure empowered the executing Court to interpret a decree and hold that it was a decree for payment of money. From the conduct of the ‘TML’ it creates a doubt in our mind that it was the intention of ‘TML’ not to transfer the unpaid dividend in favour of the ‘Hungerford’. Therefore, they prepared purported resolution dated 27th January, 1975 with the intention that in the balance sheet signed on 3rd November, 1975 with resolution dated 21st January, 1975, the Directors would not disclose the same in the balance sheet though in the auditor’s report for the said year did not reflect such resolution. Therefore, from the conduct of the ‘‘TML’’ we have no hesitation to hold that the purported resolution dated 27th January, 1975 was fraudulently fabricated to deprive the ‘Hungerford’ from its legitimate unpaid dividend. Non-payment of dividends was a continuous offence so long the payment is not made. Therefore, there is no question of limitation. Hence the theory of limitation would not be applicable in the present case as has been argued by Mr. Bose. We find that the Division Bench undoubtedly adjudicated on the issue regarding non-payment of dividend to the ‘Hungerford’ by the ‘TML’. Therefore, the order passed by the Division Bench is a decree within the meaning of Section 2 of the Code of Civil Procedure. Therefore, unless and untill full satisfaction of the decree is discharged by the ‘‘TML’’ liability of the Division Bench order dated 21st May, 1981remains and the present execution application is nothing but a tool to execute the order which was filed within the period for 12 years and there is no bar of limitation. The decisions referred by Mr. Utpal Bose, the learned senior Counsel on the ratio that executing Court cannot go beyond the decree have no manner of application considering the aforesaid discussions that non-payment of money to the ‘Hungerford’ by the ‘TML’ towards the unpaid dividends clearly indicates that the appellant was directed by the said Division Bench order to make payment towards the unpaid dividend in respect of the specific period. Therefore, to realize the same the ‘Hungerford’ has no alternative/option but to put the decree in execution which in the present case has been rightly done by the ‘Hungerford’. With this aforesaid discussions we hold that the impugned judgment and order passed by the Learned Trial Court is a well reasoned one and there is no infirmity, illegality which would deserve any interference. Therefore we have no hesitation to hold that the Appeal No.289 of 1994 preferred by ‘TML’ has no merit and the same should be dismissed. Regarding the review application of the order dated 22nd August, 2008 we find that the grounds taken in the said application have failed to satisfy the essential ingredients of the Order 47 of Code of Civil Procedure. We find that there is no merit in the said review application. Therefore, the review application is hereby dismissed. But that will not preclude the applicant to take appropriate steps before the appropriate forum if so advised. - Decided against the appellant.
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