AMHAD HUSSAIN Vs. AMNA BEGAM

JUDGEMENT

(1.) The trial Court granted preliminary decree of partition at the instance of suit for partition filed by Ameena Khatun and others. Thereafter, in the partition proceeding, Commissioner was appointed and the trial Court, with some modification passed final decree of partition, feeling dissatisfied against that judgment and decree, defendants Sajjad Hussain and Amjad Hussain preferred first appeal before the first appellate Court and that appellate Court in its judgment and decree dated 9-10-1972 passed in Civil Appeal No.3-A/1962, set aside the judgment of the trial Court and remanded back the case to the trial Court for fresh consideration, which was questioned before the High Court of Madhya Pradesh in Second Appeal No.999/1972. The High Court of Madhya Pradesh allowed the appeal and restored the judgment and decree of the trial Court on 9-7-1981. Thereafter, the execution was laid before the trial Court being Execution Case No.135-A/1981 by Ameena Khatun which was dismissed in default on 10-3-1995 and thereafter, the petitioners preferred application for execution for delivery of possession on 11-5-2000 in which the respondents preferred their objection holding the same to be hit by Article 136 of the Indian Limitation Act which was dismissed by the executing court and thereafter, it was questioned in Civil Revision No.75/2006 before this Court and this Court allowed the civil revision and remanded back the matter to decide the objection raised by the respondents herein afresh. This time, the executing Court held that the date of finalisation of decree for partition is 9-7-1981, but till 11- 5-2000, no execution was laid by the petitioners, therefore it is hit by Article 136 of the Limitation Act. Questioning legality, validity and correctness of the order passed by the executing court, the instant writ petition has been preferred.

(2.) Dr. N.K. Shukla, learned Senior Advocate appearing for the petitioners, would submit that the impugned order is unsustainable and bad in law, as it is a suit for partition in which the petitioners / defendants have also share with the plaintiffs and as soon as the petitioners / decree holders withdraw the execution on 10-3-1995, they filed an application on 11-8-1997 for calling the record of Execution Case No.135-A/1981 and for execution of final decree, but ultimately that application was rejected at the instance of Ameena Khatun / decree holder on 25-3-2000 and thereafter, the execution application was filed by the petitioners herein on 11-5- 2000 which was only a continuation to the earlier execution filed by Ameena Khatun and thereby, Article 136 of the Limitation Act would not apply and the impugned order deserves to be quashed.

(3.) Mr. Bhaskar Payashi, learned counsel appearing for the respondents, would submit that first execution case filed by Ameena Khatun was dismissed on 10-3-1995, thereafter, only on 11-5-2000, second execution case was filed which is apparently and clearly hit by Article 136 of the Limitation Act, as the decree has become final by virtue of the judgment and decree of the second appellate court (High Court) dated 9-7-1981 and Amjad Hussain neither filed execution application during his lifetime nor chose to file application for execution of the part of decree in his faovur. Therefore, the executing Court is justified in dismissing the execution case as barred by limitation and as such, the writ petition deserves to be dismissed.