DIWAN SINGH Vs. OM PRAKASH

JUDGEMENT

(1.) THIS revision is directed against the order dated 13. 3. 1996 of the executing Court. Decree in this case was passed on 18. 5. 1982. Appeal there against was dismissed by the first appellate Court on 11. 9. 1982 and the second appeal being RSA 343 of 1983 was dismissed by this Court on 10. 8. 1983. Thereafter execution application was filed on 24. 12. 1994. Judgment-debtor filed objection petition raising an objection that the execution application was barred by time and therefore, the same was liable to be dismissed. The objection raised by the judgment debtor found favour with the executing Court which by its order dated 13. 3. 1996, accepted the objections and consequently dismissed the execution application being barred by limitation. This is how the decree holder has filed the present revision.

(2.) UPON notice of motion, the judgment debtor has put in appearance.

(3.) LEARNED counsel for the petitioner placing strong reliance on Karan Singh and Ors. v. Bhagwan Singh (dead) by LRs and Ors. , (1996-2)113 P. L. R. 321 (S. C.) and Ramji Lal and Ors. etc. v. Ghisa Ram etc. , 1996 P. L. J. 191 (S. C.) submitted that the period during which the appeal remained pending, deserves to be excluded for computing the period of limitation as the appeal is continuation of the suit and, therefore, when the appeal is pending against a decree, the whole case becomes sub judice and the period of limitation will start from the order/decree passed by the final Court. This contention of the learned counsel, in my view, has no merit. As already observed, the period of limitation for executing a decree is 12 years and this period gels enlarged only lo the extent during which the execution of the decree is stayed by the Court in the first appeal or the second appeal. Mere filing of appeal against the judgment and decree in the absence of any stay granted by the appellate Court cannot enlarge the period of limitation for execution of the decree. The two judgments relied upon by Mr. Hooda, learned counsel for the petitioner have no application whatsoever to the facts of the present case. In the above two matters dispute before the Supreme Court related to a claim in a pre-emption suit and the apex Court was considering the effect of the amendment made in the provisions of Section 15 of the Pre-emption Act by Haryana Act No. 10 of 1995. It was in that situation held that in a pending appeal against the decree, the whole matter became sub judice and the right of preemption should be available to the preemptor at all stages including the final stage.