MARIA ALDA ESTRELINA Vs. ANTONIO PINTO

JUDGEMENT

(1.) A suit for declaration that the suit land belongs to the estate of Santana Afonsos and Maria Adelina Luiza Clara Marques Afonso was filed by Froilano Perpetua Socorro Marques Afonso on 14-6-1966. In this suit, mandatory injunction to remove plantation, fencing and construction done by the respondents in the suit land, was sought with directions to restore the suit land. An objection was raised by the respondents that the suit by Froilano Perpetua Socorro Marques Afonso was not competent. The said Froilano Afonso sought to implead legal heirs of Santana Afonso and his wife Maria Afonso in terms of Article 269 of the Portuguese Civil Procedure Code, read with Articles 356 and 359 of the Portuguese Civil Procedure Code, but the said application was rejected vide order dated 12-3-1970. The said Froilano Afonso thereafter filed an application under Order 1, Rule 10 (2) of Code of Civil Procedure for impleading the said heirs which was granted and the said heirs were ordered to be impleaded in the suit. Wakalatnama on behalf of the said legal heirs was filed. After due trial, the suit was decreed and the following order was passed by the Civil Judge, Senior Division, Panaji on 14-6-1996 : ". . . . . . . . . On the grounds set forth, I hold the suit tenable and proved and grant to the plaintiffs the reliefs prayed for by them. The area of 175. 5 sq. metres, to which the defendants have right, shall be demarcated in the execution of the judgment; after the demarcation is carried out, the defendants should remove the plantation and other works, made by them outside that area of 175. 5 square metres, by replacing the land to its status quo ante. I hold the counter-claim framed by the defendants in the written statement unmaintainable and not proved whereby I discharge the plaintiffs from the same. Court fee and advocates fee to the tune of Rs. 300/- to be borne by the defendants. " the respondents filed "appellacao" (Civil Appeal No. 179/76) under the Portuguese Civil Procedure Code for which only Froilano Perpetuo Socorero Afonso was joined as respondent. The said appeal was allowed vide judgment dated 30-7-1977 of the learned District Judge, Panaji, and the impugned judgment dated 14-6-1976 of the Civil Judge, Senior Division was set aside. The said Froilano Afonso filed Second Appeal 32/77 which was dismissed. On 18-3-1993, the applicants filed Execution Application No. 20/93/a for execution of the decree passed in Civil Suit No. 26/66 (old regime) 74/66. The executing Court vide order dated 4-4-1996 dismissed the said execution application which is subject matter of challenge in this revision.

(2.) BEFORE the executing Court, the respondents objected to the execution, inter alia, on the ground that the application was barred by law of limitation; that the appeal preferred by the respondents was on the grounds which were common of plaintiffs in the said suit; that the decree passed by the trial Court no longer subsists and nothing was left to be executed and that the setting aside of the decree in the appeal preferred against Froilano Afonso ensured to the benefit of the respondents against all the plaintiffs in the said suit. The Civil Judge, Sr. Division, Panaji, in a slip-short order held that the decree-holders had not preferred any further appeal to set aside the order of the learned District Judge, Panaji and as such, no decree survives for the purpose of execution.

(3.) LEARNED Advocate Shri Lotlikar argued for the applicants and learned Advocate Shri V. P. Thali argued for the respondents.