ANTONYSAMI Vs. ARULANANDAM PILLAI

JUDGEMENT

(1.) THIS revision is directed against the order passed, in c. M. A. No. 26 of 1982, which in turn a rose out of the order passed in E. P. No. 346 of 1981 in O. S. No. 35 of 1965. The petitioner herein is the legal representative of the plaintiff, who filed the suit O. S. No. 35 of 1965 for specific performance of the contract of sale. The suit was decreed in favour of the plaintiff. The plaintiff filed E. P. No. 346 of 1986 to execute the decree. In the decree, it is stated that the defendant do measure and demarcate the boundaries for 13 grounds and 491 sq. ft. in the property described hereunder on or before 23. 9. 1966, that the plaintiff do deposit into court on or before 23. 9. 1966 the balance of the sale price for 13 grounds and 491 sq. ft. on measurement and demarcation, and that on such measurement and demarcation and fixation of the price and on deposit, the defendant do execute t he sale deed in respect of the suit site in favour of the plaintiff at her cost as alleged and in default the court do execute the sale deed on application of the plaintiff and the cost of such execution of the sale deed be recovered from the defendant. The plaintiff filed the present execution petition to execute the decree under O. 21, Rule 34, c. P. C. According to the defendant/judgment debtor the execution petition was filed after 12 years beyond the time stipulated in the decree and therefore the execution petition is liable to be dismissed. But according to the plaintiff/decree holder the land in question was not measured and demarcated the boundaries on or before 23. 9. 1966. It was actually demarcated in the year 1973. Therefore, if the time is calculated from the date of compliance, of the decree in the year 1973 then the execution petition is in time. THIS contention of the decree-holder was accepted by the execution court. Accordingly, order was passed in the execution petition. Aggrieved, the judgment-debtor preferred an appeal. The appellate court came to the conclusion that the execution petition was filed beyond 12 years from 23. 9. 1966. Hence, the execution petition is barred by limitation. In that view of the matter, the appellate court reversed the order passed by the execution court and dismissed the execution petition. It is against this order, the present revision petition has been preferred by the decree-holder.

(2.) LEARNED counsel for the decree-holder/ petitioner herein submitted as under: The judgment-debtors were given time to measure and demarcate the land on or before 23. 9. 1966. This was not done by the judgment-debtors. According to the decree-holder, the judgment-debtor went to a foreign country and his brother was asked to demarcate and measure the land and accordingly the brother of the judgment-debtor measured and demarcated the land in the year 1973. After the lands were measured and demarcated in the year 1973 the present execution petition was filed on 19. 4. 1980. Therefore, the execution petition is not barred by limitation. Since the judgment-debtor failed to measure and demarcate the land as stipulated in the decree on or before 23. 9. 1966 the time for filing the execution petition should not be calculated from that time. The decree-holder has already deposited the balance of sale consideration before 23. 9. 1966, as against the order passed under O. 21, Rule 34 only a revision will lie and the first appeal filed by the judgment-debtor is not competent. The order passed under O. 21, Rule 34 accepting or refusing to accept the draft sale deed is amenable to an appeal as per the provisions of O. 43, rule 1 (i),of C. P. C. But in the present case, the order passed by the execution court does not relate to accepting or refusing to accept the draft sale deed. Therefore, the provisions contained in 0. 43, Rule 1 (i), C. P. C. , will not be applicable to the facts of this case so as to enable the judgment-debtor to file an appeal before the first appellate court. Hence, according to the decree-holder the first appeal to court was not correct in reversing the order passed by the execution court.

(3.) IT remains to be seen that the execution petition was filed under O. 21, Rule 34, C. P. C, praying to direct the defendant-judgment-debtor to execute a sale deed as per the draft sale deed produced in the court and in default to cause the execution of the sale deed by the court itself since the entire sale consideration had already been deposited in court. O. 21,rule 34,says that where the execution petition is for the execution of a decree or for the endorsement of a negotiable instrument and the judgment-debtor neglects or refuses to obey the decree, the decree-holder may prepare a draft of the document or endorsement in accordance with the terms of the decree and deliver the same to the court. According to the provisions contained in O. 43, Rule l (i), on an order passed on the objection to the draft of a document or of an endorsement an appeal will lie. In the present case, the execution petition was filed with a draft sale deed under O. 21, Rule 34 (i), civil Procedure Code. The judgment-debtor raised an objection with regard to the draft sale deed filed by the decree-holder. On such objection, an order was passed by the execution court. Therefore, only an appeal will lie against the order passed by the execution court. Further, the point of jurisdiction must be raised in the initial stage. That was not done in this case. Hence, the contention put forward by the petitioner herein viz. , that the appellate court has no jurisdiction to entertain the appeal cannot be accepted. According to the decree-holder the execution petition is within time. But according to the judgment-debtor the execution petition is barred by limitation. The judgment-debtor submitted that the period of limitation should run from 23. 9. 1966 and not from the year 1973. The decree passed in O. S. No. 35 of 1965 dated 23. 7. 1966 is as under: ' ' (l)The defendant do measure and demarcate the boundaries for 13 grounds and 491 sq. ft in the property described here under on or before 23. 9. 1966.' ' (2) That the plaintiff do deposit into court on or before 23. 9. 1966 the balance of the sale price for 13 grounds and 491 sq. ft on measurement and demarcation. (3) That on such measurement and demarcation and fixation of the price and on deposit the defendant do execute the sale deed in respect of the suit house-sites in favour of the plaintiff at her costs as agreed and in default the court do execute the sale deed on application of the plaintiff and the cost of the execution of such sale deed be recovered from the defendant. (4) That the defendant do pay to the plaintiff the sum of rs. 1,423 being costs of this suit and do bear his own costs of Rs. 507. 50.' ' The plaintiff deposited the balance of sale price' 'before 23. 9. 1966. In the present case, the demar- cation and measurement was not done on or before 23. 9. 1966 within the time fixed for measurement and demarcation and when the measurement and demarcation was not done within the lime stipulated in the decree, the decree-holder ought to have applied to the court for execution of the decree and for suitable direction to the defendant to make demarcation. The decree-holder cannot wait till the judgment-debtor measures and demarcates the land in the year 1973. Therefore, the period of limitation for filing the execution petition would start from 23. 9. 1966 and not from the year 1973 when the demarcation was done.