Om Prakash v. Ram Sri — 1978 DIGILAW 1236 (ALL)

JUDGMENT Gopi Nath, J. - This is a decree-holders execution second appeal. 2. The decree-holder was the plaintiff in a suit under Section 209 of Zamindari Abolition and Land Reforms Act. That suit was decreed on 12-8-1961 and the defendants dispossession was ordered. The plaintiff was further granted a decree for damages. The application for execution was filed on 22-7-1965. The defendant filed an objection on 16-8-1965 on the ground that the execution was barred by time. It appears that on 17-8-1965 a formal Dakhal was taken by the decree-holder, and the judgment-debtor filed another objection that the Dakhal was fictitious. The trial Court, by an order dated 21-3-1966 allowed the judgment-debtors objection holding the execution as barred by time. It rejected the judgment-debtors objection as regards the Dakhal being fictitious. Two appeals were filed before the lower appellate Court. The judgment-debtor filed his appeal against that part, of the trial Courts order which held that the Dakhal was not fictitious. The decree-holder filed his appeal against the striking out of the execution as barred by time. The appellate court, by its order dated 30-11-1967 allowed the judgment-debtors appeal and dismissed the one filed by the decree-holder. It held that the execution was barred by time, and the trial courts order striking out the execution on that ground was correct. The decree-holders appeal was, accordingly, dismissed. It allowed the judgment-debtors appeal holding that the Dakhal purporting to have been taken on 17-8-1965 was fictitious, and hence the judgment-debtors objection to that effect was allowed. 3. The decree-holder has come up in second appeal and the main point urged on his behalf was that the execution was not time-barred and the court below had erred in holding to the contrary. The time prescribed for the execution of a decree or order passed in a suit under Section 209 of the Zamindari Abolition and Land Reforms Act is contained in Appendix III of that Act in Items 51 to 53 which are as follows : Sl. No. Section of the Act Description of suit application and other proceeding. Period of limitation. Time from which period begins to run. Proper Court fees. 1. 2 3 4 5 6 51. For the execution of a money-decree or a decree under Section 209 in so far as it relates to the payment of damages not being a decree for a sum exceeding Rs. Period of limitation. Time from which period begins to run. Proper Court fees. 1. 2 3 4 5 6 51. For the execution of a money-decree or a decree under Section 209 in so far as it relates to the payment of damages not being a decree for a sum exceeding Rs. 500/- inclusive of the costs of executing such decree but exclusive of any interest which may have accrued after decree upon the sum decreed. Three years. The date of the final decree. As in tin Court-fees Act, 1870. 52. For the execution of any money decree or a decree under Section 209 in so far as it relates to the payment of damages for a sum of money exceeding Rs. 500/-inclusive of the costs of executing such decree, but exclusive of any interest which may have accrued after decree upon the sum decreed. The period allowed for the execution of a decree of the Civil Court. As in the case of a decree of the Civil Court. As in the Court-fees Act, 1870. 53. For the execution of any decree other than a money decree. One year. The date of final decree in the cate. Ditto. 4. Learned counsel for the appellant contended that the decree passed under Section 209 of the U. P. Zamindari Abolition and Land Reforms Act was for ejectment and damages and the decree was passed in terms of O. 20, R. 12-C of the Civil P. C. The appellant could thus apply for the preparation of the final decree and the time for execution of the same commenced from the date of the passing of the final decree. It was submitted that the application for execution could be treated as an application for the preparation of the final decree and so long as that application was not disposed of limitation did not commence against the decree-holder for the execution of the decree passed under Sec. 209 of the U. P. Zamindari Abolition and Land Reforms Act. It was submitted that Items Nos. 51 to 53 of Appendix 3 of the U. P. Zamindari Abolition and Land Reforms Act provided for the commencement of limitation from the date of the preparation of a final decree in the suit under Sec. 209 of that Act. It was submitted that Items Nos. 51 to 53 of Appendix 3 of the U. P. Zamindari Abolition and Land Reforms Act provided for the commencement of limitation from the date of the preparation of a final decree in the suit under Sec. 209 of that Act. The application in the instant case having been moved on 22nd of July, 1965 was essentially an application for the preparation of the final decree and thus the execution of the decree was not out of time. The contention is not sound. Items Nos. 51 to 53 of Appendix III broadly refer to two matters. Items Nos. 51 and 52 refer to a money claim while Item No. 53 refers to a decree for possession. In Mata Din v. Board of Revenue (1967 Rev Dec 204) it was held that execution of a decree for possession and damages under Sections 180 and 183 of the U. P. Tenancy Act is governed by two periods of limitation, one relating to the money part and the other relating to the possession part. The money part it was held, was governed by serial No. 5 of Group F of the 4th Schedule of the U. P. Tenancy Act while the possession part was governed by Serial No. 7 of that schedule. The decree for money could be executed within a period of three years while that for possession within one year. Under the Zamindari Abolition and Land Reforms Act also Items Nos. 51 to 53 refer to.two matters (i) a decree for money (ii) a decree for possession. Both the decrees are passed in a suit under Sec. 209 of the U. P. Zamindari Abolition and Land Reforms Act. The decree regarding possession is executable within a period of one year from the date of the final decree while the. decree for money is executable within two different periods prescribed in Items Nos. 51 and 52 respectively. The entire argument oi the learned counsel for the appellant is confined to the construction of the term 'final decree as occurring in Items Nos. 51 to 53 of the Appendix. According to the learned counsel the final decree is a decree passed according to the provisions of the Code of Civil Procedure and after that decree is passed, the limitation prescribed for the execution of the same commences. 51 to 53 of the Appendix. According to the learned counsel the final decree is a decree passed according to the provisions of the Code of Civil Procedure and after that decree is passed, the limitation prescribed for the execution of the same commences. Learned counsel for the respondent on the other hand contended that the expression 'final decree' in Items Nos. 51 to 53 refers to the finality of the decree passed in the suit under Sec. 209 of the U. P. Zamindari Abolition and Land Reforms Act. It was contended by the learned counsel for the appellant that as regards a decree for possession no question of preliminary or final decree would arise in the matter. The word final in relation to a decree for possession would thus refer to the finality of the decree passed in the suit by the courts of appeal. Thus the decree passed for possession in the instant case was not hedged in by any restrictions as regards its executability, the same having become final in the year 1961. The execution of the decree for possession was thus clearly barred by time when the same was sought in the year 1965. As regards the money claim, the contention was that the execution could not be held as barred by time as the suit was pending through proceedings of execution as regards quantification of the pendente lite and future mesne profits and till a final decree was passed, time for execution could not commence. This construction of the relevant items of Appendix III of the U. P. Zamindari Abolition and Land Reforms Act would result in great anomalies. In the instant case the decree for money was passed for an amount which was less than Rs. 500/-. The case accordingly fell under Item 51 of Appendix III. Learned counsel contended that the decree would exceed Rs. 500/ as pendente lite and future damages had been awarded to the appellant till the date of the taking out of execution for the delivery of possession. This contention is not consistent with the language of Items 51 and 52 of the Appendix. They refer to the actual decree passed which may exceed the amount of Rs. 500/- or be below it. Thus for the application of Items Nos. This contention is not consistent with the language of Items 51 and 52 of the Appendix. They refer to the actual decree passed which may exceed the amount of Rs. 500/- or be below it. Thus for the application of Items Nos. 51 and 52 the decree for money actually passed has to be looked into to find out whether it falls under Item 51 or Item 52. Since in the instant case the decree actually passed was not for a sum exceeding Rs. 500/-, Item No. 51 was applicable to the case. The application for execution was filed in 1965 i. e. much beyond a period of three years. In Mata Din v. Board of Revenue (1967 Rev Dec 204) (supra) it was held that an execution of a money decree after a period of three years of its passing was barred by time. Learned counsel relied on Puran Chand v. Roy Radha Kishen ((1892) ILR 19 Cal 132) (FB); Muhammad Umarjan Khan v. Zinat Begam ((1903) ILR 25 All 385); Narain Das v. Bhagwati Prasad (AIR 1934 All 465) : (1934 All LJ 86) and Chittoori Subbanna v. Kudappa Subbanna ( AIR 1965 SC 1325 ) and submitted that in regard to future and pendente lite mesne profits final decree can be passed covering a period of three years from the date of the decree to the date of possession whichever occurs earlier. Those cases are not in point. We are not concerned with the question as to for what period pendente lite and future mesne profits can be awarded. We are concerned with the application of Items Nos. 51 to 53 of Appendix III of the Zamindari Abolition and Land Reforms Act to an execution taken out after a period of four years from the date of the decree and to find out whether it was within time. This question to our mind, is concluded by the decision in Mata Dins case (supra) against the appellant. The court below rightly held that the execution was barred by time. 5. The appeal fails and is dismissed but in the circumstances of the case we make no order as to costs.