FATIMUNNISA BEGUM Vs. MOHD ZAINULABUDDIN SAHEB

JUDGEMENT

(1.) This Civil Misc. Second Appeal arises out of execution proceedings. The question pertains to limitation. Both the Courts have held that the Execution Petition is time barred. The decree-holder is the petitioner.

(2.) A few dates are relevant. The decree is dated 28-8-58. The Execution Petition is filed on 7-7-72. The contention of the decree-holder was that the decree was executable only on production of succession certificate and since the succession certificate was produced on 20-7-1980 (sic) limitation starts from that date as the decree became executable on that and not from 28-8-1958 when the judgment was delivered and decree was passed. The trial Court rejected this contention and the same was affirmed by the Appellate Court. The second point argued on behalf of the decree-holder was that since the decree dt. 28-8-1958 was amended on 6-1-1961, limitation starts from 6-1-61 and not from the date of the decree. This contention was also rejected by both the Courts.

(3.) Mr. N. Rajeswara Rao, the learned counsel for the appellant reiterated the same contentions before me. As can be seen from the facts, the decree was passed on 28-1-1958 and the Execution Petition was filed on 7-7-1972. Calculated from the date of the decree, the Execution Petition is beyond 12 years. Under Art.136 of the Limitation Act, time begins to run when the decree or order becomes enforceable and the period of limitation is 12 years. It is no doubt true that the decree-holder was entitled to execute the decree only on production of succession certificate. But that does not mean that the decree itself was unenforceable. The decree was passed by a Court of competent jurisdiction and it was enforceable from the very day when it was passed. The inability of the decree-holder to execute the decree due to some lapse on his part does not render the decree unenforceable. If the succession certificate was in the hands of the decree-holder by the time the decree was passed, he could have enforced it from that very day. The right to execute the decree is different from the decree being enforceable. A distinction between these two causes is always maintained.