MAHANT SUNDER DASS Vs. NATHO

JUDGEMENT

(1.) A decree for possession of agricultural land measuring 53 Kanals 4 Marais was passed in favour of Smt. Natho respondent. She took out execution of that decree and by the time execution was to be carried out, consolidations had taken place and new Khasra numbers came into being. Under the orders of the Executing Court, the decree-holder took possession of various Khasra numbers including Khasra No. 8/5/2, on 14th August, 1971. When Mahant Sunder Dass judgment-debtor came to know that Khasra No. 8/5/2 was not allotted in consolidation in lieu of any part of the land covered by the decree, he filed an application on 18th September, 1974, before the Executing Court under sections 57, 144 and 151 of the Code of Civil Procedure (hereinafter referred to as the Code), for restoring the possession of Khasra No. 8/5/2 to him. This application was opposed by the decree holder who raised an objection that the application filed by the judgment-debtor was beyond the period of three years and, therefore, was time barred. Simultaneously the decree holder applied for execution of the decree in regard to Khasra No. 60/24, respecting which actual physical possession had not been delivered to her. Both the matters were considered by the Executing Court together and by order dated 1st January, 1980, the application filed by the judgment-debtor was dismissed as time barred being beyond the period of three years and the execution application of the decree holder was allowed and an order was passed for delivery of actual possession of 60124. Against the aforesaid order the judgment-debtor has come up in revision to this Court.

(2.) After hearing the counsel for the parties, I am of the view that the below was in error in coming to the conclusion that the application judgment-debtor was barred by limitation and the decision of the Court below in that regard deserves to be set aside.

(3.) The question whether a restitution application would he an application for execution or not and whether an application by a judgment debtor in proceedings for execution, discharge and satisfaction of the decree shall be an application covered by execution proceedings or not has been the subject-matter, of controversy in various High Courts but this matter now stands finally a concluded by a judgment of the Supreme Court in Mahijibhai Mohanbhai Barot V. Patel Manibhai Gokalbhai and others, 1965 AIR(SC) 1477 It has been laid down in the aforesaid decision as follow :-