NIYAMATULLAH AND ORS. Vs. BADRE ALAM AND ORS.

JUDGEMENT

(1.) Heard Sri Gajendra Pratap Singh, Senior Advocate, assisted by Sri Brijesh Kumar Singh, learned Counsel for the petitioners, Sri V.K. Baranwal, Advocate, Sri V.S. Chaubey, Advocate, and Sri K.K. Mani, Advocate, for the respondents and perused the record. The only contention is that though second appeal was dismissed as abated on 7.3.2008, but, for the purpose of limitation, it would commence from the date of Lower Court's decree and not from the date when the second appeal was dismissed. Reliance is placed on a decision of Apex Court in Ratan Singh v. Vijay Singh, 2001 42 AllLR 447; Chandi Prasad and others v. Addl. District and Sessions Judge, Hapur and others, 2001 43 AllLR 441 and Uma Shankar Sharma v. The State of Bihar and another, 2005 AIR(Pat) 94.

(2.) On the contrary, it is contended on behalf of respondent that limitation will start for execution after the decree has attained finality i.e., when the appeal is dismissed, and placed reliance on Banshidhar Durga Dutta v. Loon Karan Sethiya and others, 1983 9 AllLR 337.

(3.) The short question up for consideration in the case in hand is whether limitation for execution of a decree will commence from the date of decree or when judgment and decree of Trial Court attained finality after decision of appeal, first or second, under section 96 or 100, C.P.C., as the case may be.