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1967 DIGILAW 74 (GAU)

Khundrakpam Yaima Singh v. Mayengbam Tomchou Singh

1967-12-02

C.JAGANNADHACHARYULU

body1967
JUDGMENT These are two appeals filed by Khundrakpam Yaima Singh of Terakeithel against the common judgment and decrees in Misc. Civil Appeals Nos. 14 of 1963 and 15 of 1963 disposed of by the District Judge, Manipur on 17-2-1965, affirming the orders of the Munsiff, Manipur in Misc. Cases Nos. 110 of 1962 and 111 of 1962 in Title Suit No. 350 of 1950 and Money Suit No. 48 of 1955 respectively. 2. Both the matters are connected and were disposed of by common judgment by the Munsiff as well as the District Judge. So, both the appeals are dispose of by a common judgment here also. 3. The facts of the cases are very simple. Tomchou Singh of Terakeithel . Yengkhom Leirak, (the respondent in both the appeals) filed Title Suit No. 350 of 1950 on the file of the Munsiffs Court, Manipur, for pre-emption of certain piece of land against Yaima Singh, (the appellant in both the appeals). The suit was decreed on 29-6-1954. He filed E. P. No. 65 of 1954 for execution of the decree. But, it was dismissed on 6-12-1958. Again, within 3 years therefrom he filed Second Execution Petition No. 27 of 1959. It was dismissed on 7-9-1959. Then, he filed a third Execution Petition No. 16 of 1962 on 22-2-1962 within 3 years. The appellant filed an objection petition Civil Misc. Case No. 111 of 1962, objecting to the execution. The Munsiff dismissed the objection petition. The appellant herein carried the matter in appeal to the District Judge in Civil Appeal No. 15 of 1962. The District Judge also dismissed it. So, the appellant filed Second Misc. Civil Appeal No. 3 of 1965 on the ground that the decree dated 29-6-1954 passed in Title Suit No. 350 of 1950 is barred by limitation. 4. The appellant Yaima Singh, also filed Money Suit No. 48 of 1965 in the Munsiffs Court against the respondent Tomchou Singh for recovery of Rs. 500/-in respect of improvements made by him and structures constructed by him on the land covered by the decree in Title Suit No. 350 of 1956. The suit was decreed by the Munsiff on 24-2-1956. The respondent herein, namely, Tomchou Singh carried the matter in appeal to the District Judge in Civil Appeal No. 64 of 1956. The District Judge confirmed the judgment and decree of the Munsiff. The suit was decreed by the Munsiff on 24-2-1956. The respondent herein, namely, Tomchou Singh carried the matter in appeal to the District Judge in Civil Appeal No. 64 of 1956. The District Judge confirmed the judgment and decree of the Munsiff. Tomchou Singh carried the matter in second appeal to this Court in Civil Appeal No. 29 of 1957. This Court held that Yaima Singh, the appellant herein would be entitled to recover Rs. 500/- from Tomchou Singh, the respondent, only if the respondent Tomchou Singh wanted to recover possession of the land along with the improvements and structures, but that the appellant Yaima Singh would not be entitled to recover that amount in case the respondent Tomchou Singh did not want the improvements and structures. Vide Ext. B. Subsequently, the appellant Tomchou Singh filed execution Petition (E. P. No. 96 of 1959) for recovery of Rs. 500/-. The matter came up before this Court in Misc. Civil Appeal No. 3 of 1961. This Court dismissed the E. P. reiterating the point that was decided in Civil Appeal No. 29 of 1957 (Vide Ex. C). Still, the appellant filed E. P. No. 61 of 1962 on 23-5-1962, for recovery of Rs. 500/-to execute the decree in Money Suit No. 48 of 1955. The respondent Tomchou Singh filed an objection petition in Misc. Case No. 110 of 1960 stating that there was no executable decree, as he wanted to take the land without the improvements and structures. The Munsiff upheld his objection and struck off the E. P. The appellant Yaima Singh filed Misc. Civil Appeal No. 14 of 1963 before the District Judge. The District Judge dismissed it, upholding the judgment of the Munsiff. So, the appellant Yaima Singh filed Civil Second Misc. Appeal No. 2 of 1965 against the judgment and decree of the District Judge in Civil Appeal No. 14 of 1963. 5. The only point that was argued in Second Misc. Civil Appeal No. 2 of 1965 and which arises for determination is whether the two Courts below were correct in upholding the objection of the respondent Tomchou Singh in Misc. Case No. 110 of 1962 and dismissing the E. P. No. 61 of 1962 in Money Suit No. 48 of 1955. A perusal of Exts. Civil Appeal No. 2 of 1965 and which arises for determination is whether the two Courts below were correct in upholding the objection of the respondent Tomchou Singh in Misc. Case No. 110 of 1962 and dismissing the E. P. No. 61 of 1962 in Money Suit No. 48 of 1955. A perusal of Exts. B. and C. shows that this Court held on two previous occasions in the Second Civil Appeal No. 29 of 1957 as well as in Misc. Civil Appeal No. 3 of 1961 that the decree in Money Suit No. 48 of 1955 is executable only if the respondent Tomchou Singh wants to recover the improvements and structures also along with the land. But, he does not want to take possession of the improvements and structures. He wants to take delivery of the land only. The learned Counsel for the appellant contended that the improvements and structures formed part of the corpus, that they cannot be separated and that, therefore, the decrees passed by this Court are inexecutable. The executing Court cannot go behind the decree, which is bound by it. No doubt, the appellant Yaima Singh would be put to loss because, when the structures and the improvements are removed, they would be of no avail on their removal from the land. But, the Court cannot help the position. He has got to remove the super structures and the improvements made by him as the respondent does not want them. So, both the Courts are correct in interpreting the decrees evidenced by Exts. B. and C. Misc. Civil Second Appeal No. 2 of 1965 is, therefore, liable to be dismissed. 6. The only point, which was argued and which arises for determination in Misc. Second Civil Appeal No. 3 of 1965, is whether the decree dated 29-6-1954 in Title Suit No. 350 of 1950 is barred by limitation. As already stated E. P. No. 65 of 1954 was filed within 3 years, namely, on 6-12-1958. E. P. No. 27 of 1959 was also filed within 3 years therefrom and was dismissed on 7-9-1959. The third E. P. No. 16 of 1962 was filed within 3 years on 22-2-1962. The period of 12 years also did not expire from 29-6-1954 when the said E. P. No. 16 of 1962 was filed by the respondent. 7. E. P. No. 27 of 1959 was also filed within 3 years therefrom and was dismissed on 7-9-1959. The third E. P. No. 16 of 1962 was filed within 3 years on 22-2-1962. The period of 12 years also did not expire from 29-6-1954 when the said E. P. No. 16 of 1962 was filed by the respondent. 7. The contention of the learned Counsel for the appellant is that E. P. No. 65 of 1954 and E. P. No. 27 of 1959 do not save limitation, that they were not filed in revival and continuation of each other and that, therefore, E. P. No. 16 of 1962 is barred by limitation. He relied on Krishna Panicker v. Kunchu, ILR 1953 Trav-Co 858 : AIR 1954 Trav-Co 1 (FB) and Krishna Pillai Narayana Pillai v. Neelakanta Pillai Velayudhan Pillai, ILR 1956 Trav-Co 980 : AIR 1957 Trav-Co 293. The former case arose under Section 48, Civil Procedure Code and it was held that a fresh application after the expiry of the period of 12 years from the date of the decree would not save the decree from the bar of limitation. The second case referred to the first one and followed it. These cases have no bearing on the facts of the present case at all. E. P. No. 65 of 1954 and E. P. No. 27 of 1959 are steps-in-aid of the execution. They do save limitation. There is no need for revival or continuation of the same prayers in the E. Ps. Nor is there any need that the prayer in the E. Ps. must be the same. It is sufficient if an E. P. is filed properly within 3 years from the date of the decree asking the Court to take steps in execution of the decree. Then, such an E. P. will be a step-in-aid of the execution and saves limitation, even though it is not subsequently prosecuted and is dismissed. E. P. No. 16 of 1962 was filed on 22-2-1962 within 8 years from 29-6-1954. So, it was in time. Now, certainly there will be a bar under Section 48, Civil Procedure Code if a fresh E. P. is to be filed. But, it was filed within 8 years and is still pending and the Munsiff will have to execute the decree. It is not barred by limitation. 8. So, it was in time. Now, certainly there will be a bar under Section 48, Civil Procedure Code if a fresh E. P. is to be filed. But, it was filed within 8 years and is still pending and the Munsiff will have to execute the decree. It is not barred by limitation. 8. There is no substance in either of the two appeals. Accordingly, both the appeals are dismissed with costs. Appeals dismissed.