BHERULAL Vs. MOHD JAMIL

JUDGEMENT

(1.) THE petitioners have filed this revision under Section 115 of the Code of Civil Procedure ("code" hereafter) as they are aggrieved by the order dated 7-3-2006 passed by learned Xllth Civil Judge, Class-I, Indore, in Civil Execution Case No. 38-A/82x2000, where by the application of the petitioners to challenge the execution application as barred by limitation has been rejected. The present petitions arises out of the following facts:

(2.) THE deceased Mohammad Jamil had filed a Civil Suit No. 38-A/82 against deceased Bherulal for ejectment and possession of the disputed house in 1982. In the said suit deceased Bherulal was proceeded ex parte and the suit was decreed ex parte on 27-7-1982. An application for execution of the said decree was filed on 22-6-2000. Meanwhile on behalf of the deceased/defendant Misc. Judicial Case No. 21/84 for setting aside the said decree under Order IX Rule 13 of the Code was filed on 14-12-1984 and the same was dismissed on 25-11-1989. Against the said dismissal, the defendants/judgment-debtors filed appeal. That appeal was registered as Misc. Appeal No. 10/89 and the same was re-registered later at No. 1/01 and was decided on 14-8-2001 on the ground that it was preferred beyond period of limitation, i. e. , 30 days from the date of the order dated 25-11-1989. The petitioners filed objections to the execution on 4-9-2003. They raised several objections. They also submitted that there was no stay of execution of the decree dated 27-7-1982, hence the execution application was time barred. They had also submitted that the disputed land has been acquired by Indore Vikas Pradhikaran for Scheme No. 38 and the decree holders have no right to take possession from the petitioners. The learned Execution Court rejected the same on 20-2-2004 and found that the application for execution was filed within limitation as according to the learned Executing Court the ex parte decree under reference became final only on 14-8-2001 the date on which the appeal against the order rejecting the application to set aside the ex parte decree was dismissed. The petitioners, therefore, filed a Revision Petition No. 96 of 2004 before this Court. This Court vide order dated 13-10-2005 directed the learned Execution Court to decide the matter afresh after going though the records and on consideration of relevant provisions of law and keeping in view the decisions of the Apex Court vide AIR 2001 SC 3404. The learned Execution Court heard the matter and vide order dated 7-3-2006 reached the conclusion that the execution application was not barred by limitation. Hence the present revision.

(3.) LEARNED Senior Counsel for the petitioners submitted that under Article 136 of the Limitation Act, 1963 in the circumstances of the case the learned Execution Court was in error when it reached the conclusion that the execution application was within limitation. In support of his contention he relied upon AIR2001 SC 3404 , JT2001 (6 )SC 311 , 2001 (5 )SCALE163 , (2001 )7 SCC573 , 2001 (2 )UJ1430 (SC ) [hameed Joharan (Dead) and Ors. v. Abdul Salam (Dead) by L. Rs. and Ors. and AIR2005 SC 2564 , 2005 (2 )AWC1793 (SC ), (SCSuppl )2005 (4 )CHN72 , 120 (2005 )DLT83 (SC ), JT2005 (5 )SC 329 , 2005 (2 )KLT1018 (SC ), RLW2005 (2 )SC 313 , (2005 )10 SCC746 , 2005 (2 )UJ907 (SC ) [dr. Chiranji Lal (D) by L. Rs. v. Hari Das (D) by L. Rs. ]. In this counter arguments, learned Counsel for the respondents submitted that in the face of doctrine of merger the order under attack does not suffer any illegality. In support of his argument, he relied upon 2004 (6 )ALD75 (SC ), 2005 (1 )ARC630 , 2004 (4 )AWC3208 (SC ), 2004 (3 )BLJR1938 , 2004 (5 )CTC67 , [2005 (1 )JCR141 (SC )], JT2004 (8 )SC 255 , 2004 (3 )KLT654 (SC ), (2004 )4 MLJ141 (SC ), RLW2004 (4 )SC 629 , 2004 (8 )SCALE446 , (2004 )8 SCC724 , (2005 )1 UPLBEC972 [chandi Prasad and Ors. v. Jagdish Prasad and Ors].