SADASHIV GYANBA CHAUGULE Vs. BABU TUKARAM CHAUGULE

JUDGEMENT

(1.) I have heard the learned Counsel appearing for the parties. The issue involved in this writ petition under Article 227 of the Constitution of India is as regards the starting point of limitation provided under Article 136 of the Limitation Act, 1963, The original petitioner is the original plaintiff. The suit filed by the petitioner-plaintiff was decreed on 27th December 1976. An appeal was preferred by the defendant (respondent herein) before the District Court. The said appeal was dismissed by judgment and decree dated 31st October 1977. On 27th February 1989, an application for execution of the decree was filed by the original petitioner. By the impugned order the said application has been dismissed. The learned Executing Court held that in view of Article 136 of the said Act the application for execution ought to have been filed within a period of 12 years from 27th February 1976 as the decree passed by the trial Court was not stayed during the pendency of the appeal preferred by the respondent.

(2.) THE learned Counsel appearing for the petitioners placed reliance on a decision of the Apex Court in the case of (Chandi Prasad and ors. Vs. Jagdish Prasad and ors.)1, 2004 DGLS (soft) 683 : (2004)8 Supreme Court Cases 724. He submitted that the decree of the trial Court merged with the decree of the Appellate Court and therefore the period of limitation will start running from the date on which the Appellate Court passed a decree. He also placed reliance on a decision of the learned Single Judge of this Court in the case of (Ramkrishna Bajirao Gotmare Vs. Kanhaiyalal Tribhuwanlal Shah],1990 B.C.I. 36(N.B.) : 1990(2) Mh.L.J. 897. He submitted that looking to the phraseology used by the Article 136 , even decree passed by the Appellate Court can be executed as the decree passed by the trial Court merges with the decree of the Appellate Court. He, therefore, submitted that from the date of the decree of the Appellate Court, the execution application was filed within limitation.

(3.) IN the case of Ramkrishna (supra), a similar controversy arose before this Court. IN paragraph 6 of the decision this Court noted the consistent legal position: