RAMKRISHNA NARAYAN KHEDKAR Vs. SHRIKRISHNA NAGORAO ZADE

JUDGEMENT

(1.) Civil Revision Application No. 17 of 2013 is taken up first for hearing and disposal, since the outcome thereof would govern the other matter, namely Civil Revision Application No. 75 of 2013. In Civil Revision Application No. 17 of 2013, the Judgment Debtor has put to challenge the Order dated 30th September, 2010 passed by learned Civil Judge (Junior Division), Achalpur, below Exh. 17 in Regular Darkhast No. 36 of 2009, inter alia, on the ground that the decree sought to be executed was barred by Article 136 of the Limitation Act, in the sense that while the decree was passed on 14th December, 1987, it was sought to be executed in 2009, i.e., almost after twenty-two years.

(2.) Learned Adv. Mr. S.R. Deshpande for the Judgment Debtor vehemently argued that the said objection of execution being barred by limitation was specifically raised and, therefore, under section 3 of the Limitation Act, it becomes a duty of the Court to dismiss the execution, if it is barred by limitation, even if the party does not raise the issue of limitation. He then argued that at any rate, there was no stay order in the appellate proceedings before this Court and, therefore, the decree holder was never prevented from putting the decree to execution. But then he lost the time for over a period of twenty-two years and hence the objection ought to have been upheld and the execution proceedings ought to have been dismissed on the ground of limitation. He then argued that the violation of Prevention of Fragmentation and Consolidation of Holdings Act was also brought to the notice of the Court in the said objection.

(3.) Per contra, learned Adv. Mr. J.J. Chandurkar for the decree holder argued that the decree, in question, had only the character of a Preliminary Decree in view of the precept contemplated under section 54 of the Civil Procedure Code, for execution of a decree in respect of land assessed to land revenue and, therefore, until and unless the Tahsildar makes an effective partition as per the Partition Rules, 1967, the decree cannot be a final decree. Learned Adv. Mr. Chandurkar also cited a decision of the Supreme Court in the case of Chandi Prasad vs. Jagdish Prasad, 2004 7 Supreme 121 as referred to in the Judgment of a Single Judge of this Court in the case of Somnathappa Nagnathaapa Halge vs. Kamlabai Govindlal Goud and others, 2013 4 MhLJ 419, and argued that the doctrine of 'merger' will come into play.