SARASWATI JINNAPPA KHOT Vs. KUMAR SHRIPAL KHOT

JUDGEMENT

(1.) The captioned petition is filed by the judgment debtors assailing the impugned order dtd. 17/7/2018 passed by the Executing Court in E.P.No.89/2017 on an application filed in I.A.No.3.

(2.) The facts leading to the case are as under: Respondent filed a suit seeking relief of specific performance based on an agreement dtd. 25/4/1991 executed by the father of petitioners namely Jinappa Jayapal Khod. The said suit was contested by father of petitioners. The Court decreed the suit filed in O.S.No.30/1995 by holding that present respondent/decree holder has succeeded in proving the agreement. Consequently, the suit of the plaintiff was decreed vide judgment and decree dtd. 11/7/2002. The father of the present petitioners herein was directed to execute registered sale deed in favour of respondent/decree holder by receiving balance sale consideration of Rs.40,000.00. Based on the decree rendered by the Court in O.S.No.30/1995, respondent/decree holder filed an execution petition on 31/3/2017. The present petitioners who are the judgment debtors before the Executing Court have filed an application in I.A.No.3 under Sec. 115 of CPC requesting the Executing Court to dismiss the execution petition as barred by law. The primary contention raised by petitioners before the Executing Court is that the decree in a specific performance suit was rendered on 11/7/2002 and therefore, Article 136 of Limitation Act is applicable to the present case on hand and the decree was enforceable as on 2002 and therefore, execution petition filed on 31/3/2017 is clearly barred by limitation and hence, sought for dismissal of the execution petition.

(3.) Executing Court, however, over-ruling the objections raised by the present petitioners/judgment debtors referring to the records found that before a decree for specific performance was passed, the judgment debtor No.1 had already filed a suit for partition and separate possession against her husband and other family members on 8/11/2001 and in that suit, the respondent/decree holder was arrayed as defendant No.2. The said suit filed in O.S.No.711/2011 was dismissed with costs. The petitioners preferred an appeal in R.A.No.15/2006. The same was dismissed on merits on 26/2/2016 thereby affirming the judgment and decree passed in O.S.No.711/2011.