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Madhya Pradesh High Court · body

1977 DIGILAW 232 (MP)

Sher Mohammad v. Mardan Singh

1977-07-20

M.L.MALIK

body1977
Short Note : 1. This revision is directed against the order of the executing Court dated the 28th September, 1976 in Execution Case No. 35-A of 1968. By this order, the Court has dismissed the objections raised by the judgment-debtors on executability of the decree, on the ground that the objections were: raised more than 3 years after the passing of the decree and were, therefore, barred by limitation. Held: The order is obviously erroneous. The judgment-debtors in the present case could raise an objection to the executability of the decree as and when the decree for possession was sought to be executed. It is not the date of the decree that would govern limitation for challenging its executability. The real objection in the present case was that by executing the decree for possession the decree-holder would be in possession of land beyond the ceiling limits and that is prohibited by section 7 of the M.P. Ceiling on Agricultural Holdings Act. The learned Judge did not consider this objection at all and applied Article 137 of the Limitation Act presuming that the right to apply accrued on the date of the decree. It is the date on which possession was sought to be obtained the right to apply accrued. 2. That apart, the order dated 28-9-76 must be set aside on quite another ground. This order was passed without notice to the judgment-debtors and without hearing them. The record of the case was ordered to be sent to the District Judge vide order sheet dated 18-8-76. The judgment-debtors were under the impression that the records shall be so sent. On 9-9-76, the decree-holder moved an application for an early order. The copy of the application was not given to the judgment-debtors and they had no notice that the case would be listed on 22-9-76. They, therefore, did not and could not remain present on that day. The case was adjourned to 28-9-76 and the impugned order was passed. The judgment-debtors were not heard on the question of limitation at all. The order, therefore, must be struck down, being a nullity. 3. I am satisfied that the judgment-debtors filed this revision as soon as they were appraised of this order by their counsel who inspected the record. If there be any delay, in filing the revision, that is condoned. Revision allowed, case remanded.