TARAK PAL Vs. JIBAN KRISHNA DEY & ORS

JUDGEMENT

(1.) Initially the point which appears to be somewhat settled become debatable and assumes anxious consideration when a plea is taken by the petitioner that the execution proceeding is barred by limitation having filed after the expiration of 12 years from the date of the decree passed by the Court of first instance.

(2.) To elaborate the aforesaid point, it is submitted on behalf of the petitioner that though the suit was decreed on merit but there was no order of stay of the execution proceeding passed in the appeal filed against the said decree and therefore in absence of any fetter to put the decree into execution, the execution proceeding filed after the dismissal of an appeal on technical ground does not postpone the date of limitation provided under Article 136 of the Limitation Act. To have more clarity on the above plea, the undisputed salient facts are adumbrated herein below:-

(3.) Essentially the appeal is dismissed for default and an execution proceeding was filed in the year 2012 i.e. within 10 years from the date of the order of dismissal of the said appeal. A plea is taken in an application under Section 151 of the Code of Civil Procedure that the said execution proceeding is palpably barred by limitation under the provisions of Article 136 of the Limitation Act.