N VEERRAJU Vs. KANCHI KAMDKSHAMMAVARI TEMPLE

JUDGEMENT

(1.) The respondent-temple obtained decree for recovery of possession on 8-11-1978 in O.S. No.219/70 against the petitioner (second defendant) and the first defendant, of whom the petitioner was the tenant. The petitioner did not prefer any appeal; while the appeal filed by the first defendant in A.S. No.179/79 was dismissed by the learned District Judge, West Godavari at Eluru on 7-5-1983. In December, 1994 (exact date is not available from the record) the respondent-temple filed E.P. No.115/94 against the petitioner, as well as the first defendant. The petitioner filed counter taking the plea that the execution petition is barred by limitation under Article 136 of the Limitation Act, as twelve years have elapsed from 8-11-1978. Without considering the objections taken by the petitioner, the Court below passed a docket order on 19-4-1996 setting the Judgment-Debtors ex parte and ordering delivery of possession. Against this docket order, the petitioner has come up with the present revision before this Court contending that the execution petition filed by the respondent-temple before the Court below - E.P. No.115/94 is barred by time.

(2.) Mr. T.S. Anand, learned Counsel appearing for the petitioner, contended that the Court below ought to have considered the objection raised by the petitioner regarding limitation before ordering the execution petition and requested that the matter may be sent back to the Court below for considering the same on merits. No doubt, Mr. Anand is correct in his submission that the Court below ought to have considered the objection raised by the petitioner. But, in my view, remand is not necessary, as it only protracts the proceedings and being a pure question of law it can be decided here itself. This ground has also been raised in the grounds of revision. As such, I am not inclined to remand the matter.

(3.) Mr. Anand next contended that for the purpose of Article 136 of the Limitation Act, the date of decree of the first instance i.e., 8-11-1978 has to be taken into account and merely because the other defendant has preferred an unsuccessful appeal, which was dismissed on 7-5-1983, the limitation period cannot be computed from 7-5-1983.