Re: Legal opinion regarding execution of fresh solenama
A/C. Company 1.
We refer to your letter dated 09.05.2007 on the above subject matter. We have perused the contents of your letter alongwith papers/document sent to us.
We understand that Bank 1 filed Execution Case No. 06 of 2005 on 13.01.2005 against the judgement debtors for recovery of the decretal amount with interest. However, a compromised agreement was executed on 19.11.2006 between the Bank and the judgement debtors. The said compromised agreement was filed in the executing Court and the executing Court disposed of the Execution Case No. 06 of 2005 vide order dated 28.11.2006 as per terms of the aforesaid compromise agreement. Thereafter, the judgement debtors have defaulted in repayment of the compromised amount as per terms of the aforesaid Compromised Agreement and now they have approached to the Bank to execute a fresh solenama to settle the remaining decretal amount. In such situation, the matter has been referred to us with a request to advise as to whether the Bank can execute a fresh solenama through Court allowing the judgement debtors to deposit the balance settle amount by 12 (twelve) equal quarterly instalments within 3 (three) years.
Our opinion is as follows:
The law relating to filing second or subsequent suit for execution is stated in section 28(3) of the Artha Rin Adalat Ain, 2003 which provides as follows:
“The second or subsequent suit for execution, if filed after one year from the date of disposal or dismissal of the first or previous suit for execution, shall be barred by limitation; and the Court shall, summarily dismiss such suit which is barred by limitation”.
In the instant case, upon filing of the compromise agreement dated 19.11.2006, the executing Court disposed of the execution case vide its order dated 28.11.2006 as per terms of the aforesaid compromise agreement. Since the execution case was disposed of on 28.11.2006, the 2nd execution case, if so necessary, has to be filed within 1 (one) year from the date of disposal of the 1st execution case, i.e., within 1 (one) year from 28.11.2006. Otherwise, the 2nd execution case will be barred by limitation as per provisions of section 28(3) of the Artha Rin Adalat Ain, 2003.
In the premises stated above, we are of the view that since execution case was disposed of on 28.11.2006, no execution case is pending before the Court and as such there is no scope of filing fresh compromise agreement in the executing Court without filing 2nd execution case. Further, we understand from your letter that the judgement debtors are in default in making payment of the compromised amount as per terms of the compromise agreement dated 19.11.2006. In such situation, considering the limitation period as stated in section 28(3) of Artha Rin Adalat Ain, 2003, the best possible course for the Bank is to file 2nd execution Case against the judgement debtors for recovery of its remaining decretal amount with interest.
If you have any further query, please do not hesitate to contact us.
For: “The Lawyers & Jurists”