ASHOK SHARMA Vs. VASUDEV NANDAN

JUDGEMENT

(1.) Heard on I.A. No.10132/2023, which is an application for dispensing with service of notice on respondent No.1(b) and respondent No.1(c). The aforesaid I.A. has already been allowed and disposed of vide order dtd. 17/9/2024.

(2.) Learned counsel for the petitioner has argued before this Court that, admittedly, the original judgment for mandatory injunction was passed by the learned Trial Court on 25/2/1987, but no decree in pursuance to the aforesaid judgment was framed. It was further argued that the said judgment was challenged by the judgment debtor before the first appellate Court which got dismissed for want of prosecution vide judgment dtd. 22/11/1994. Thus, the said judgment dtd. 25/2/1987 attained finality.

(3.) It was further argued that since the record of Civil Suit No.95A/1983 was not traceable, therefore, a complaint was made to the High Court on administrative side and vide order dtd. 28/2/2022 the matter was received by the Trial Court for reconstitution of the case and for casting liability for misplacing of the record of the said suit. After scrutiny by the Trial Court, it was found that record of three cases concerning to the Civil Suit No.95A/1983 (old no.55A/1983) were restored in the software and since two of the parts were of no use, it directed to reconstitute the record so far as Civil Suit No. 55A/1983 (Shubhash Sharma vs. Vasudev Nandan etc) judgment dtd. 25/2/1987 was concerned and, thereafter, reconstruction of the entire record was done and accordingly, the decree was prepared on 22/3/2022 and as per Article 135 of the Limitation Act, 1963, the period of limitation of three years is to be reckoned from the date of decree, therefore, the said execution preferred on 16/6/2022 for execution of decree dtd. 22/3/2022 was within period of limitation, but learned Executing Court construing the limitation from the date of the judgement i.e. 25/2/1987 has held that as per Article 135 of the Limitation Act, 1963, the execution proceedings since was preferred after approximately 35 years was beyond the period of limitation, therefore, was not maintainable which is per se illegal.