PARMANAND THAKUR Vs. MAHENDRA HAZARI

JUDGEMENT

(1.) THIS Revision petition has been preferred against the order dated 16.9.1998 passed by Sub -Judge, Benipur, Darbhanga in Title Execution Case No. 1/85 whereby the objection raised by the petitioner regarding the maintainability of the execution case has been rejected and order has been passed for proclamation of sale.

(2.) SOME facts are necessary to be stated for appreciating the position and circumstances which run as follows: - One Tuna Thakur had two sons, namely, Batuck Narain Thakur and Kantu Thakur having half and half equal share in the ancestral properties. Most. Akabari Thakurain was the widow of late Batuck Narain Thakur. She tiled partition Suit No. 98 of 1948 against her son Bucharu Thakur and others claiming her 1/4th share in the suit properties. The son of the plaintiff Bucharu Thakur .was the defendant No.1 while defendant Nos. 2 to 4 (petitioner was defendant No.4 in the suit) were the lenial descendants of Kantu Thakur. The partition suit was preliminary decreed for 1/4th share of the plaintiff and ultimately when Takhta was made by the Advocate Commissioner and accepted by the Court it was finally decreed on 3.2.1973 in favour of the plaintiff and in the final decree it was also included the amounts of mesne profits. The decree was passed in the following manner that the suit be decreed in favour of the plaintiff against contesting defendant No. 1 and exparte against the other defendants. In respect of the cost of the suit it was imposed only against the defendant No. 1. Then the decree was purchased by the Opposite Party No.1, namely, Mahendra Hazari from the plaintiff -decree -holder Most -Akabari Thakurain in the year 1967 and levied the decree in execution being Title Execution Case No.1 of 1985. Various objections were raised at every stage of the execution case by the judgment debtor. In the counter affidavit it has been mentioned that the defendant No.1 except his residential house had sold away all his properties in. the share in favour of the other defendants who is now contesting as Judgment debtor in the execution case. It should be mentioned here that while passing the decree in final form only the share of the plaintiff was being separated and separate Takhta was made in favour of the plaintiff decree holder and the rest of the lands remained joint with the other defendants including the defendant No.1. objections were raised from the side of the petitioner who was defendant No.4 in the suit that the, execution case is barred by limitation as the same has been levied in the year 1985 while the decree was passed in the year 1973 i.e. beyond the period of limitation of 12 years as contemplated under Article 136 of the Limitation Act. That matter was considered by the Court below long back in the year 1986 but the same plea was again taken. It was raised that the decree of mesne profits was passed only against the defendant No.1 as he was in possession of the plaintiff's share of land and not the other defendants but the decree for mesne profits was also passed jointly and severally against all the defendants without mentioning specifically from whom the same amount should be recovered, but the petitioner by referring to a sentence in the final decree and also by referring some other interlocutory orders passed in the suit has pressed that mesne profits decree was only against the defendant No.1 and not against the other defendants including the' petitioner, while the accounts of mesne profits were mentioned in the final decree it was recorded in the following manner which was given much emphasised to by the petitioner "a sum of Rs. 14,000 (fourteen thousand) yearly produce share of the plaintiff upto 1957 to crops of paddy 1962 as per order by the court realised from the defendant 1st party through certain execution cases and remaining accounts as detailed below." It is the contention of the petitioner that realisation being made of some periods of crops from the defendant 1st party i.e. the defendant No. 1 clearly construes that the remaining bat nee amount should also be realised from the defendant 1st party and not from other non -contesting defendants. This matter was also considered by the Executing Court in its earlier order dated 19.8.1986 which is reiterated in the impugned order and held that as the decree stands the mesne profits should also be realised jointly and severally from against all the judgment -debtors. It is the contention of the opposite parties that the same objections are being raised again and again from the side of the petitioner -judgment -debtors only as a delaying tactis. The order dated 19.8.1986 has become confirmed long back and the same cannot be reitreated again and again. It also appears that against the final decree two appeals were preferred and both the appeals had been dismissed one for default and other for abatement. It is submitted from the petitioner's side that setting aside abatement proceeding is still continuing. Be it what it may the fact remains that the Executing Court has got no scope to go beyond the decree and he is to execute the same as it is. If the petitioner had a grievance regarding the preparation of the decree he could have raised that point under Section 152 of the Code of Civil Procedure before the original Court but he did not do so although the objection was raised long back in the year 1986. It further appears that the present petitioner has already Purchased the share of defendant 1st party excluding the residential plot. So the liability of the petitioner for satisfying the decree cannot be questioned in the circumstances and position. Regarding the limitation matter it was rightly held by the learned court below in its earlier order dated 19.8.1986 while interpreting Article 136 of the Limitation Act that the word enforceable appearing in that article means the date of decree passed by the appellate Court to be a starting point for limitation. This has now become the settled principle and the order of the executing Court passed long back has become final and cannot be raised again and again. On the limitation matter nothing much has been stated or pressed during the course of argument. Practically this revision petition has got no force as the order dated 19.8.1986 has already decided regarding the grievance raised by the petitioner and reiteration of the same has been rightly rejected by the learned Court below in the impugned order.

(3.) THUS the Revision petition has got no force and hence the same is rejected with cost of Rs. 250/ -.