LAXMIBAI HARESHWAR JOSHI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The above Letters Patent Appeal is on the basis of the leave granted by S. K. Desai, J., against his judgment dated 22nd November, 1971, in Second Appeal No. 1403 of 1969 and involves a point of limitation under Article 136 of the Limitation Act, 1963.

(2.) Second Appeal No. 1403 of 1969 was filed against the decision of the District Judge, Thana, dated July 4, 1969, setting aside an order passed by Civil Judge, Junior Devision, Palghar, in Regular Darkhast No. 34 of 1967, dismissing the said darkhast on the ground that though the darkhast was in time under Article 136 of the Limitation Act, 1963, the darkhast was liable to be dismissed because the subject-matter of the decree was not in possession of the judgment-debtor (respondent No. 7), being lis pen-dens, was hit by Section 52 of the Transfer of Property Act and the decree was executable as the darkhast was in time.

(3.) In that second appeal the decision of the learned District Judge was set aside on the ground that the period of limitation provided under Article 136 of the Limitation Act, 1963, will have to be calculated from the date of the decree which, in the case, would be from April 14, 1952, which was the date of the appeal decree in Civil Appeal No. 342 of 1949 and not from August 31, 1963, which was the date of the order made in Misc. Application No. 81/1976 for the amendment of the decree.