KAMLA BAI PATEL Vs. VIDHYAWATI PATEL

JUDGEMENT

(1.) THE applicant has challenged order dated 1. 3. 2002 passed by 3rd Additional District Judge, Jabalpur in execution Case No. 127-A/85 by which the execution application filed by the petitioner was dismissed on the following grounds :

(2.) ON the aforesaid ground, the Court below rejected the application. The order has been assailed by the applicant on the ground that on 4. 9. 1987 a preliminary decree was passed. On 21. 10. 87 an execution of decree was smt. Kamla Bai Patel vs. Smt. Vidhyawati Patel and others. filed but it was dismissed in default on 22. 12. 1995. On 17. 1. 1996, 2nd application was filed in which a Commissioner was appointed on 22. 9. 1999 to give affect to the preliminary decree. The Commissioner submitted his report on which on 22. 11. 2000 objections were filed and the trial Court again on 24. 7. 2001 directed the Commissioner to file report. The judgment debtor filed two applications dated 3. 8. 2001 and 4. 9. 2001 seeking review of the earlier orders but the executing Court rejected the applications and fixed the case for Commissioner's report. Thereafter, various applications were decided by the impugned order.

(3.) IT was submitted by Shri Verma, learned counsel for the applicant that Art. 137 of the Limitation Act does not apply in the final decree proceedings. Final decree proceedings may be initiated at any point of time. Reliance is placed to a recent judgment of the Apex Court in Hasham abbas Sayyad vs. Usman Abbas Sayyad and ors. [2007 (2)SCC 355]. It is submitted that the preliminary decree finalises the matter relating to declaration of rights and interest and final decree works out those rights so the final decree concludes the proceedings before the Court and suit comes to an end for all practical purposes, till then the proceedings of the suit continues. In these circumstances, there was no question of applicability of Art. 137 of the limitation Act as held by the trial Court.