ABDUL SALAM Vs. HAMEED JOHARAN

JUDGEMENT

(1.) THE legal heir of the deceased first defendant is the revision petitioner predecessor of the respondents. THE suit filed by the decree-holder was one for partition. In execution of the decree, it is contended by the judgment-debtors that the execution is barred by limitation, because of expiry of 12 years from the date of the decree. By the impugned order, the lower court rejected the contention and allowed the execution to be proceeded with. THE present revision is filed by the legal heirs of the first defendant, challenging the said finding.

(2.) THE material facts are as follows: THE preliminary decree for partition was passed on 8. 9. 1969. Final decree was passed on 20. 11. 1970 as per I. A. No. 82 of 1970. Being a partition suit, the parties are bound to furnish stamps for drafting the decree. On 28. 2. 1972, the District Court, Nagapattinam issued notice to the parties to furnish stamp papers, granting time till 17. 3. 1992. THE decree-holder did not furnish any stamp and no decree was drafted. On 17. 1. 1977, the original decree-holder died. On 26. 7. 1983, application was filed by legal representatives of the decree-holder to implead themselves as additional plaintiffs and, on 23. 2. 1984, the same was ordered. THE legal representatives were impleaded on 8. 3. 1994. After incorporating the names of the legal heirs of the plaintiff, an execution application was presented before the District Court on 21. 5. 1984. In the meanwhile, there was a civil revision petition before this Court, namely, C. R. P. No. 2374 of 1984 against the order of impleadment. THE same was dismissed on 8. 10. 1984. On 11. 12. 1984, an order was passed in the execution petition holding that the execution petition is barred by limitation since it was filed beyond 12 years. A revision was filed against the said order as C. R. P. No. 2000 of 1985. On 10. 3. 1989, this Court set aside the order of the executing court and directed that the question of limitation should be considered afresh. By the impugned order dated 13. 7. 1989 the lower court held that the execution petition is not barred by limitation.

(3.) IN Rajeshwar Rai v. Shankar Rai,a. I. R. 1962 Pat. 398, it has been held as follows: 'reading Sees. 2 (2), 2 (9), 33 and O. 20, Rules 1, 6 and 7 together it must be held that the''decree'as defined in Sec. 2 (2) comes into existence as soon as the judgment is pronounced. It does not necessarily mean the formal decree which is prepared in accordance with Sec. 33 and O. 20, Rule 6. The definition of the words'decree-holder' 'in Sec. 2 (3) makes it further clear that the decree-holder means a person in whose favour a decree has been passed as soon as the judgment has been pronounced, and not necessarily a person in whose favour a decree has been formally prepared, as required by Sec. 33. Apparently, although an appeal cannot be filed until the formal decree has been drawn up and prepared, an execution case can be filed for the execution of the decree which has really come into existence by the pronouncement of the judgment, but it is to be formally drawn up and written subsequently. Hence an execution filed shortly after the judgment was pronounced before the formal decree was prepared as required by sec. 33 and O. 20, Rule 6 is legal and valid.'