RAKESH KUMAR Vs. CHHOTEY LAL

JUDGEMENT

(1.) This is a judgment-debtor's petition under Article 227 of the Constitution arising out of a part rejection of his application under Sec. 151, Code of Civil Procedure, 1908 (for short, 'the Code') by the Executing Court vide order dtd. 5/5/2018, holding the execution application not barred by time, and the order of the learned District Judge, Etah dtd. 28/5/2018, affirming the said order in Revision.

(2.) Briefly stated, the facts relevant for decision of this petition are that one Chhote Lal instituted Original Suit No. 466 of 1969 for specific performance of contract against Maha Ram, saying that the latter had entered into an agreement to sell with the plaintiff on 14/8/1966, covenanting to sell Plot no. 442 admeasuring 4.86 acres, situate at village Birauchi, Paragana Pachalana, District Etah. The suit was instituted before the exCourt of Munsif, Kasganj, saying that Maha Ram had agreed to sell the suit property to the plaintiff in terms of the suit agreement dtd. 14/8/1966 for a total sale consideration of Rs.2500.00. It was covenanted between parties that Maha Ram, who was arrayed as defendant no. 1 to the suit, will execute a sale deed in favour of the plaintiff within three months after securing bhumidhari rights. The plaintiff had paid an earnest of Rs.1000.00, and, defendant No. 1 delivered possession to the plaintiff over the suit property. Maha Ram avoided execution of the covenanted sale deed in favour of the plaintiff on various pretexts, though the plaintiff remained ready and willing throughout to perform his part of the contract. Maha Ram stealthily executed a sale deed, conveying the suit property to one Har Prasad, arrayed as defendant no. 2 to the suit on 13/6/1969. Defendant no. 2 to the suit knew about the prior agreement in favour of the plaintiff, as also the fact of possession being with the plaintiff. The suit aforesaid was duly contested by both the defendants and decreed for the relief of specific performance by the Munsif, Kasganj vide judgment and decree dtd. 2/6/1975. The said decree was appealed by the second defendant to the suit, Har Prasad before the learned District Judge, Etah, arraying Maha Ram as a proforma respondent. The appeal, upon assignment, came on for hearing before the Additional District Judge, Court No. 5, Etah on 31/3/2011, when it was dismissed and the decree of the Trial Court affirmed. A second appeal from the appellate decree was carried to this Court, being second appeal No. 468 of 2011. The Second Appeal, however, was dismissed by this Court under Order XLI Rule 11 of the Code vide an order dtd. 24/5/2011. It is common ground that the decree for specific performance has attained finality between parties.

(3.) An application for execution of the decree was moved on 21/7/2011, that is to say, after the Lower Appellate Court had affirmed the Trial Court and this Court also had summarily rejected the second appeal preferred by Har Prasad, the purchaser and another. In the execution application that was filed, in Column No. 3, the date of the decree to be executed was mentioned as 2/6/1975, that is to say, the date of the original decree. In Column No. 4, it was mentioned that a first appeal from the original decree was filed, being First Appeal No. 114 of 1975, which was dismissed by the learned District Judge, Etah on 31/3/2011. It is mentioned that Second Appeal No. 468 of 2011 too was carried before the High Court, which was dismissed vide order dtd. 24/5/2011. Now, in the execution case registered on the basis of the execution application dtd. 21/7/2011, bearing Execution Case No. 2 of 2011, an application has been filed on behalf of judgmentdebtors nos. 2/1 and 2/2, bearing paper no. 54-EC-2, saying that the execution application is ex facie barred by time, because it seeks execution of the decree dtd. 2/6/1975 passed in Original Suit No. 466 of 1969 and presented far beyond the prescribed period of limitation of 12 years, under Article 136 of the Schedule appended to the Limitation Act, 1963 ('the Act of 1963' for short). The limitation was sought to be reckoned from the date of the original decree by the judgment-debtors nos. 2/1/ and 2/2, calculating time between the original decree dtd. 2/6/1975 passed in the suit and the date of institution of the execution application i.e. 21/7/2011. Another objection raised through the same application, bearing paper no. 54-EC-2, is to the effect that the heirs of judgmentdebtor no. 1, Maha Ram, were not properly impleaded, inasmuch as on the date of institution of the execution application, the heirs and LRs of Maha Ram were judgmentdebtors nos. 1/2/1 Satya Prakash and 1/2/2 Basdev, shown to be minors in the application, but their guardian ad litem, through whom they were to be represented, was not impleaded, in compliance with the provisions of Order XXXII Rule 3 of the Code. Another facet of this objection and more fundamental in nature that was raised was that after the death of judgment- debtor no. 1 Maha Ram, who was defendant no. 1 to the suit, his heirs and LRs were not substituted in the plaint.