DEOKINANDAN PODDAR Vs. RAMESH KUMAR GOENKA

JUDGEMENT

(1.) In this civil revision the order dated 26-4-1985 passed by Sri T. L. Verma, 6th Additional District Judge, Patna, passed in Miscellaneous Appeal Nos. 114 of 1981/22 of 1983 has been assailed. That miscellaneous appeal arose out of an Execution Case No. 4 of 1980 and the order seems to have been passed in the following back ground:The petitioners in this revision claim to have acquired right, title and interest in the property to which the suit related by virtue of purchase from one Banarsilal Bagla (opposite party No. 5), whose mother had instituted a Title Suit Nos. 8/17 of 1963/66 against opposite party No. 6, Sardar Daleep Singh and the suit had been decreed. That decree was put in execution by Banarsilal Bagla in Execution Case No. 4 of 1980. The opposite party 1st set in this civil revision, who claimed to have purchased the interest of opposite party No. 6, objected to the execution of the decree by filing objection under S. 47 read with S. 151 of the Code of Civil Procedure and the main ground of objection was that the execution petition was barred by the law of limitation. The learned Execution Munsif dismissed the objection by order dated 14-21981. Against that order dated 14-2-1981 the objectors preferred appeal, which has been disposed of by the impugned order dated 264-1985. Learned appellate Court has come to the finding that the execution petition was barred by limitation.

(2.) Broadly two reasons appear to have been given by the learned appellate Court for taking the view that the execution petition was barred by limitation. First is that since the decree in the suit had been passed on 18th of March, 1967, which is the date of the judgment passed in the title suit and the execution petition was filed in the year 1980, and by that time 12 years had expired, the execution petition was barred by the law of limitation. The second reason for taking the view was based on the interpretation of the decree, and the learned appellate Court took the view that since the decree was in the form of mandatory injunction and not in the form of perpetual injunction, it was clearly barred by the law of limitation and Art. 136 of the Limitation Act on which reliance was placed by these appellants would not apply to that execution case.

(3.) First reason given by the learned appellate Court is absolutely misconceived in law in view of the Full Bench decision reported in 1987 Pat LJR 172 : (AIR 1987 Patna 133) (Jokhan Rai v. Baikunth Singh). It is admitted position that after the judgment and decree dated 18-3-1967 passed in the aforesaid title suit by the trial Court, opposite party No. 6 had filed Title Appeal No. 45 of 1967 before the learned District Judge, Patna and the appeal was dismissed by order dated 14-5-1970, for default. It further appears that thereafter petition for re-admission of the appeal bearing Misc. Case No. 8 of 1970 was filed on 8-6-1970, which also stood dismissed for default on 13-11-1971, whereafter Miscellaneous Appeal 12 of 1971 was filed before this Court and the same was dismissed by order dated 18-10-1973. Since the execution case has been filed within 12 years even from the date of dismissal of first appeal on 14-51970, the appellate Court certainly took a wrong view in coming to the finding that it was filed beyond 12 years period. It is conceded by the learned counsel for both the sides that in view of the Full Bench decision the learned appellate Court went wrong in computing the period of limitation from the date of decree of the trial Court; for it is now settled that the period of limitation has to be computed from the date of the final disposal of the appeal (which in this case opposite party No. 6 had preferred against the decree of the trial Court). The fact, that no stay of execution of the decree had been granted, referred by the appellate Court is not relevant, though the learned appellate Court has erroneously taken this aspect into consideration.