CHANDI PRASAD Vs. JAGDISH PRASAD

JUDGEMENT

(1.) What would be the date from which a decree becomes enforceable for execution thereof within the meaning of Article 136 of the Limitation Act, 1963 (the Act) is the question involved in this appeal which arises out of a judgment and decree dated 30th March, 2001 passed by the High Court of Judicature at allahabad in Civil Misc. Writ Petition No. 8954 of 2001. FACTS

(2.) A suit for partition was filed by the respondents herein against the Appellants wherein a preliminary decree was passed on 25.4.1962. A final decree proceeding was thereafter initiated whereupon the final decree was prepared on 7.5.1968. On or about 6.8.1968 an execution case marked as Execution Case No. 279 of 1968 was filed by the respondents. As against the said final decree, however, in the meanwhile a First Appeal had been filed which was marked as Civil Appeal no. 502 of 1968. It was dismissed by an order dated 21.3.1969. A Second Appeal thereagainst was preferred by the Appellants which was allowed and the matter was remitted back to the appellate Court for determining the merit of the appeal afresh.

(3.) The first Appellate Court again dismissed the appeal on 4.1.1974. In the meanwhile, the said execution petition was dismissed, presumably because the Second Appeal filed by the Appellants was allowed. Against the judgment and decree dated 4.1.1974 passed by the Appellate Court in Civil Appeal No. 502 of 1968, the Appellants herein preferred a second Appeal before the High Court which was marked as Second Appeal No. 481 of 1974. The said appeal was dismissed by the high Court on 18.4.1985. A formal decree pursuant thereto was drawn on 30. 10. 1986. An application for execution of the decree was filed by the Respondents on 26.3.1997. Contending that the said execution application is barred by limitation, the Appellants filed an application under Section 47 of the Code of civil Procedure (the Code) which was dismissed by the Executing Court by an order dated 1.5.1999. The Respondents preferred Misc. Appeal No. 32 of 1999 against the order of executing Court before the Additional District and Session Judge, Hapur which was allowed holding that the said execution application was not barred by limitation. The Appellants herein filed a writ petition before the High Court questioning the correctness of the said order. The said Writ Petition has been dismissed by the impugned order dated 30. 3.2001. Hence this appeal. REFERENCE :