VIJAY DATTATRAYA NAVALE Vs. SHIVANAPPA HANUMANTAPPA NAGURE

JUDGEMENT

(1.) A short but interesting point arises in this matter. The father of respondent No. 1 Shivanappa filed Regular Civil Suit No. 70 of 1970. The learned Civil Judge, J. D. Akkalkot by his judgment and order dated 3-11-1971 decreed the said suit directing that the respondent No. 1 was entitled to recover Rs. 4660/- from respondent No. 2 along with interest at 6% per annum on principal amount of Rs. 4,000/- from the date of suit till realisation. He also ordered the costs in favour of respondent No. 1. Respondent No. 1 filed execution proceedings i. e. Regular Derkhast No. 39/83,. It came to be filed on 17-11-1983. The respondent No. 1 claimed total amount of Rs. 8388-51 which included the principal amount, interest at 6% per annum on Rs. 4,000/- and the costs. In the said execution proceedings, order came to be passed on 22-1-85 directing attachment of the 1/3rd share of the property C. S. No. 1314 of the petitioner under Order 21, Rule 54 of Civil Procedure Code. Thereafter order came to be passed on 25-9-1986 directing warrant and sale proclamation of the said house property after notice to respondent No. 2. Point of limitation came to be raised on behalf of the petitioner contending that the execution petition was filed beyond limitation. The respondent No. 1 contended that decree was drawn on 15-11-1971 and certified copy was applied on the same day. The certified copy was ready on 25-11-1971. The said period requires to be excluded and hence execution petition filed on 17-11-1983 was within 12 years and not barred by limitation. The learned Civil Judge by his order dated 8-2-1988 accepted the said contention and held that execution petition was within limitation.

(2.) THE learned Advocate appearing for the petitioner contended that provisions of section 12 (2) of Limitation Act, 1963 are not applicable to the execution proceedings and therefore the time required for obtaining the certified copy of decree cannot be excluded. He pointed out that as the judgment was delivered in Regular Civil Suit No. 70 of 1970 on 3-11-1971, the same is to be taken as the date of the decree in view of the Order 20, Rule 7 of Civil Procedure Code and it is necessary to calculate the time from the said date. He alternatively submitted that even if it is assumed that decree was prepared and singed by the learned Civil Judge, J. D. , Akkalkot on 15-11-1971, the time starts running from 16-11-1971 and ends on 15-11-1983. Even then execution proceedings filed on 17-11-1983 are beyond 12 years and therefore, barred by limitation. He submitted that the learned Judge has committed an error in excluding the period which was required for obtaining the certified copy of the decree i. e. upto 25-11-1971 and holding that the execution proceedings filed on 17-11-1983 were not barred by limitation. The learned Advocate for the respondent first submitted that respondent No. 1 is entitled to get the period which was required for obtaining the certified copy as the same was necessary for filing darkhast. He next submitted that petitioner herein is the son of the judgment-debtor-respondent No. 2 and cannot therefore, file this revision.

(3.) THE first question is whether this revision at the instance of the petitioner is maintainable or not as he is not judgment-debtor or whether respondent No. 2 should have filed the same. Section 3 of Limitation Act, 1963 mandates that any suit instituted, appeal preferred or application made after the prescribed period shall be dismissed even though limitation has not been set up as a defence. It is for the Court to consider whether the suit, appeal or application is within limitation or not, and in case it is not then the same must be dismissed. Therefore, merely because this revision has been filed at the instance of this petitioner, who is not judgment-debtor, cannot mean that the same is not maintainable and should be dismissed on this ground. Further the petitioner was impleaded in darkhast proceedings after notices were issued under Order 21, and 22 and petitioner raised the objection as to limitation, by filing application dated 8-2-1988. Therefore, I hold this revision is maintainable.