NARAYAN PRASAD Vs. MOHAN SINGH

JUDGEMENT

(1.) The present petition has been filed by the petitioner challenging the order dated 26/11/2014 passed by Additional Civil Judge Class-I Ganj Basoda in case No.97A/86/13 in Execution Decree, whereby the application filed u/S.5 of the Limitation Act was allowed.

(2.) It is alleged by the learned counsel for the petitioner a civil suit was filed for recovery of possession and permanent injunction on 18/2/1986 the Civil Suit was finally decreed on 5/4/1994 and an application u/O.XXI Rule 11 CPC for execution of judgment and decree was filed by the respondent No.1 alongwith an application u/S.5 of the Limitation Act alleging therein that the decree could not be executed within 12 years owing to the fact he was minor at that time, on attaining the majority he has preferred an application for execution of the decree. It is further submitted that the knowledge regarding passing of the judgment and decree for the first time came to him in the year 2012, thereafter he has applied for obtaining the certified copies of the decree and has filed the proceedings. It is further alleged that the respondent No.1 has taken a ground of his mental illness and the fact that the father of the respondent No.1/plaintiff passed away in the year 1997 therefore, as he was having no knowledge about the judgment and decree, therefore the application for execution of decree could not be filed within time. It is alleged by counsel for the petitioners that the sole question before the Hon'ble High Court for consideration is whether the provisions of Limitation Act are applicable to the proceedings u/O.XXI Rule 11 CPC. It is alleged that the Hon'ble Supreme Court in the case of Damodaran Pillai & Others Vs. South Indian Bank Ltd., reported in 2005 (7) SCC 300 has dealt with aforesaid proposition and has held that the Civil Court in absence of any express powers cannot condone the delay. The applicability under Section 5 of the Limitation Act was also considered and it was held that the application u/S.5 of the Limitation is not maintainable in the proceedings under Order XXI of the Code. It is further argued that the decree was passed on 5/4/1994 for which the execution has been filed on 18/7/2013 alongwith an application under Section 5 of the Limitation Act. The learned Executing Court has committed a grave error in allowing the application and taking cognizance in the matter, whereas the provisions of the Limitation Act specifically barred under the code. He has relied upon the judgment passed by the Hon'ble High Court in the case of Hafiz Noorbux (dead) through L.Rs. Abdul Rhoof alias Waqar Quresh and Ors. Vs. Dattatrey Joshi & Ors., reported in 2008 (2) M.P.H.T. 215 and the Hon'ble High Court in case of Bherulal & Ors. Vs. Mohd. JamiL & Ors., reported in 2006 (3) M.P.H.T. 501 and has argued that in absence of any specific provisions providing the Applicability of Limitation Act to Order XXI of the CPC the order passed by learned trial Court is illegal and against the settled principles of law. Accordingly, he has prayed for quashment of the impugned order.

(3.) Per contra, learned counsel appearing for the respondent No.1 has argued that order passed by learned trial court is well reasoned and justified order. He has drawn attention of this Court to Section 5 of the Limitation Act which and has argued that the provisions of Section 5 of the Limitation act as applicable in the case of respondent No.1 as he was not of unsound mind and was minor at the time when the decree was passed and was not having any knowledge, therefore, the provisions of Limitation Act were applicable in his case and the application has rightly been filed. It is further contended that learned trial court has rightly condoned the delay and taken the matter into cognizance. Therefore, he has prayed for dismissal of the application.