SHARANAPPA Vs. SHRISHAILAPPA

JUDGEMENT

(1.) This second appeal is by defendant 1 against the decree passed by the Civil Judge at Bijapur in RA.4i of 1967 reversing the decree passed by the Munsiff at bagewadi in CS.77 of 1964.

(2.) On the 15 th of September 1964, respondent 1 (plaintiff) instituted the suit tor pobsession of the suit house and for future mesne profits and costs. The suit was resisted by the defendants on various grounds. The Court of instance dismissed the suit of the plaintift. On appeal, the learned Civil Judge decreed the suit. Hence, this second appeal.

(3.) Sri K.S.Savanur, learned Cqunsel appearing for the appellant contended that the suit is clearly barred by b.47 of the CPC in view of the decree passed in the previous suit viz., CS.25 of 1947 for possession of the same property in favour of the plaintiff respondent 1. It is not disputed that respondent 1 obtained a decree in his favour for possession of the same suit schedule property in CS.25 of 1947 against the appellanti and respondent 2. That decree was passed in favour of respondent 1 on 25-7-194y. The proper course for the 1st respondent was therefore to execute that decree within time and secure possession of the suit schedule property. S.47(l) of the CPC, provides that all questions arising between the parties to the suit In whicn the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit. The suit of respondent 1 is therefore, clearly barred by S.47 of the CPC, as the plaintiff (respondent 1) could have secured posssession in execution of the decrees obtained by him in the previous suit i.e., CS.25 of 1947. It is true that the Court has power to treat the suit as an execution petition and give proper relief. The hurdle in resorting to this procedure is the bar contained in S.48 of the CPC as was in force at the relevant point of time. S.48(l) CPC provides that where an application to execute, a decree not being a decree granting an injunction has been made no order for the execution of the decree shall be made upon any fresh application presented after the expiration of 12 years from the date of the) decree squght to be exeauted or where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree Sub-sec (2) of .48 of the CPC provides that nothing in S.48 shall be deemed to preclude the Court from ordering the execution of a decree upon an application presented after the expiration of the said term of twelve years where the judgment-debtor has, by fraud or force, prevented the execution of the decree at some time within twelve years immediately before the date of the application or to limit or otherwise affect the operation of Art. 133 of the. First, Schedule to the Limitation Act, 1908. It is clear from S.48 of the CPC that respondent 1 in this casa should have filed the execution petition within 12 years from the, date of the decree passed in Civil Suit 25 of 1947. That decree as already mentioned was mdae on 25-7-1949. The present suit was filed on 15-9-1964 after the expiry of more than 12 years after the date of passing of the decree in CS.25 of 1947. It is not the case of respondent 1 that it is on account of any fraud or force on the part of the judgment debtor that he was prevented from executing the decree within the prescribed period of 12 years. The said period of 12 years expired long before the Limitation Act, 1963 came into force, by which S.48 of the CPC stood deleted.