NETLAL Vs. THAGI BAI

JUDGEMENT

(1.) This revision is directed by the applicant/judgment debtor under section 115 of Civil Procedure Code being aggrieved by the order dated 23-8-2010 passed by 3rd Civil Judge, Class-II, Balaghat in Execution Case No. 280-A/87, whereby the application of the applicant filed under section 47 of Civil Procedure Code has been dismissed.

(2.) The fact necessary to consider the question of admission of this revision in short are that the predecessor in title of the respondent/decree holder namely Thagi Bai had filed a Civil Suit bearing No. 280-A/87, against the applicant for possession and perpetual injunction with respect of the disputed land bearing Survey No. 138/1 and 185/2 area 2.17 Decimal. Such suit was decreed by 3rd Civil Judge, Class-II, Balaghat for possession and perpetual injunction vide judgment and decree dated 30-4-1990. On challenging such decree by the applicant in Civil Regular Appeal No. 25-A/90, by affirming the judgment and decree of the trial Court such appeal was dismissed by 1 st Additional District Judge, Balaghat vide judgment and decree dated 17-3-1998. Subsequent to affirming such decree on 10-11-2009 the respondent herein (legal representative of Thagi Bai) has filed Execution Proceeding of aforesaid decree in the Court of 3rd Civil Judge, Class-II, Balaghat. In pendency of the same on behalf of the applicant/judgment-debtor an application under section 47 of Civil Procedure Code was filed. As per averments of such IA, the possession of the disputed property was hande.d over to the decree-holder in the year 1995 and at present the same is in possession of Orilal and in such premises the respondent/decree-holder is not in possession of the same. It is further stated that under execution of the impugned decree the appellant is going to execute the decree with respect of other property of the applicant while the decretal property is not in possession of the applicant. Such Execution Proceeding is also challenged on the ground of limitation, as the same is filed beyond 12 years from the date of the decree passed by the trial Court i.e. on 30-4-1990 and in such premises the prayer for dismissal of the Execution Proceeding was made.

(3.) In reply of the respondent by denying the averments of IA, it is stated that the present application has been filed with intention to create obstruction in Execution of the decree as alleged the possession of the disputed property was never handed over to the respondent/decree-holder or his predecessor-in-title. It is also denied that Execution Proceeding is filed barred by limitation.