ARAKHITA NAIK Vs. NARASINGH NAIK

JUDGEMENT

(1.) THE judgment-debtors are petitioners in this Writ application.

(2.) T. S. No. 50 of 1964 was filed by the opposite party as the sole plaintiff in the court of the then Munsif, Berhampur. The suit was decreed on 6-8-1973, directing the sole defendant Bharat Naik to deliver the suit schedule property to the plaintiff. Against the said decree the defendant preferred an appeal before the 'then Addl. ' sub-ordinate Judge, Berhampur which was registered as T. A. No. 21 of 1976 (T. A. 78 of 1973 ). The appellate Court by judgment arid decree passed on 7-10-1977 confirmed the decree of the trial Court and dismissed the appeal with costs. Thereafter the plaintiff-decree holder filed petition before the trial court on 14-8-1989 praying for execution of the decree for recovery of possession of the suit property which was registered as execution Petition No. 37 of 1989. The judgment-debtor appeared in Court and filed a petition under Section 47 read with Order 21, Rule 23 of the Code of Civil Procedure questioning the executability of the decree. The said petition was registered as MJC no. 14 of 1990. During pendency of the MJC judgment-debtor Bharat Naik died and the present petitioners being his heirs were sub-stituted in his place. On receipt of notice of the Execution Petition, the petitioners filed their objection under Order 21, Rule 23 read with Section 151 CPC specifically contending that the suit was decreed on 6-8-1973, and the Execution Petition having been filed on 14-8-1999, beyond the period of twelve years prescribed under the Limitation Act was not maintainable. The executing Court by order dated 24-8-1994 held that the decree was not executable as the Execution petition had been filed beyond twleve years of passing of the decree. Being aggrieved by the said order of the executing Court the decree-holder filed Civil Revision which was registered as C. R. No. 10 of 1999. The said civil Revision was heard and disposed of by the Addl. District Judge, Berhampur. The revisional Court after discussing the inter se contentions of the learned counsel for the parties and perusing the provisions of law by order dated 26-6-2000 allowed the revision and held that the Execution Petition having been filed within twelve years of passing of the decree in appeal, i. e. 7-10-1977, was maintainable. The said order dated 26-6-2000 of the revisional Court is assailed in this Writ application.

(3.) MR. S. S. Rao, learned counsel for the petitioners, drawing attention to Article 136 of the Limitation Act submitted that the decree in question was passed by the trial court on 6-8-1973 and the period of limitation started from that date. Once the period of limitation starts unless there is an order of stay it cannot be arrested. Thus filing of the Execution Petition in the year 1999 was grossly barred by limitation as the same was much beyond twelve years. He stated that the said aspect was not kept in mind by the learned revisional Court and the impugned order passed by it is not sustainable. According to him, the facts of the case reported in AIR 1974 SC 1380, M/s. Gojer Bros. v. Ratanlal were distinctly separate from the present case and the revisional Court erred in allowing the revision relying upon the ratio of the said decision.