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Madhya Pradesh High Court · body

1995 DIGILAW 693 (MP)

Kuldeep Singh v. M. P. Griha Nirman Mandal

1995-09-06

V.K.AGARWAL

body1995
ORDER 1. Both these revisions arise from the impugned orders dated 30.10.1993 passed in civil suit No. 42-A/1984 (Civil Revision No. 578/93) and civil suit No. 40-A of 1984 (Civil Revision No. 584/93) by II Additional District Judge, Ba1aghat whereby the application for execution of the exparte decree passed in the said civil suits was held to be time-barred and was accordingly dismissed. 2. Decrees in civil suit No. 42-A/84 & civil suit No. 40-A/84 were passed in favour of the applicant whereby a mandatory injunction to the effect against the non-applicants/defendants was passed that the non-applicants would allot an MIG type house to the applicant whenever it is constructed, at the price, as prevailing for the said type of house in the year 1978. The exparte decrees to the above effect passed on 21st June, 1985 were sought to be executed by applications for execution dated 20.1.1993, which were held to be time-barred and dismissed by the impugned order. 3. It was urged before the executing Court that the judgment-debtors/non-applicants had filed an application under Order 9, Rule 13, CPC for setting-aside the exparte decrees passed, as-above, which application was dismissed on 7.2.1987 by the trial Court and the misc. appeal preferred in the High Court was also dismissed on 30.11.1992. Therefore, the period of limitation should be computed from 31.11.199, i.e., the date of dismissal of the misc. appeal against the order dismissing the application for setting aside ex-parte decree passed in the original suit. The contention was repelled by the impugned-order saying that the period of limitation could not be counted from 30.11.1992, which was passed in a co-lateral proceeding by way of an application under Order 9, Rule 13, CPC. 4. It is an admitted position of the case that the exparte decree against the defendants/non-applicants was passed by the trial Court on 21.6.1985 and that it was a decree for mandatory injunction. Period of limitation for enforcement of a decree granting a mandatory injunction is governed by Article-135 of the Limitation Act and is provided as 3 years from the date of the decree or where a date is fixed for performance, such date. In the present case, on perusal of the copy of the decree, it is clear that no date of performance was specified in the original decree passed in the civil suit. In the present case, on perusal of the copy of the decree, it is clear that no date of performance was specified in the original decree passed in the civil suit. Therefore, the date of the decree, i.e., 21st June, 1985 would be the date from which the limitation would be computed. The argument of the learned counsel for the applicant is that the date ought to be computed from the date on which the appeal against an order dismissing application under Order 9, Rule 13, CPC was passed and that date as mentioned - above was 30.11.1992. The above argument evidently cannot be accepted. 5. It is clear that the decree in the original suit was passed on 21.6.1985 and no appeal thereof had been filed. An application under Order 9, Rule 13, CPC by the judgment-debtors/present non-applicants was filed, which was dismissed by the trial Court and the appeal to the High Court was also dismissed on 30.11.1992. Certainly, that application for setting aside the decree was not an appeal against the decree. It was a collateral proceeding and the period of limitation under Article 135 of the Limitation Act, therefore has to be computed from the date of decree, i.e., 21.6.1985 and not from the date of dismissal of application i.e., 30.11.1992. In this connection, the case reported in Bhawanipore Banking Corpn. Ltd. v. Gauri Shanker Sharma [AIR (37) 1950 SC 6] may be referred to. In that case, the judgment-debtor's application under Sec. 36, Bengal Money-lenders Act, for re-opening the preliminary mortgage decree was dismissed for default and a final decree was passed whereafter the judgment-debtor made an application under Order 9, Rule 9, CPC for restoration of proceedings under the Bengal Money-lenders Act, but that application as also the appeal against the said order of dismissal was dismissed. It was urged in that case that the period of limitation should be counted from the date of dismissal of the appeal against the order of dismissal of the application for restoration under Order 9, Rule 9, CPC. It was held therein by the Supreme Court, repelling the above argument, that, "... It was urged in that case that the period of limitation should be counted from the date of dismissal of the appeal against the order of dismissal of the application for restoration under Order 9, Rule 9, CPC. It was held therein by the Supreme Court, repelling the above argument, that, "... However, broadly we may construe it, it cannot be held to cover an appeal from an order which is passed in a collateral proceeding or which has no direct or immediate connection with the decree under execution." Similar view has been taken in Ghanshyam Mohapatra and others v. Suryamani Swain (AIR 1964 ORISSA 205) wherein it has been held that the word 'appeal-', as appearing in Article-182 (2) of the Limitation Act is one confined only to such appeals as are directly taken against a decree, but it does not include all appeals from orders passed in Collateral proceedings such as the one under Order 9, Rule 13, CPC, where an application to set aside an exparte decree is dismissed and the appeal against the said dismissal is also dismissed, limitation for execution of the exparte decree runs from the date of the decree itself and not from the date of the appellate order in the restoration proceeding. 6. The case in hand is also of similar nature, and it is clear that since the application under Order 9, Rule 13, CPC was not against the decree but was, in fact, against the passing of the ex-parte judgment and decree against the non-applicants and that application, as well as the appeal against that order having been dismissed, the exparte decree would not merge in such an order and was executable from the date of its passing i.e., 21.6.1985. Therefore, the period of limitation under Article 135 of the Limitation Act would be computed and would start running from the date of passing of the decree. 7. It may be mentioned that the learned counsel for the applicant has also urged that the ex-parte decree, which was sought to be set aside by the application under Order 9, Rule, 13 CPC, if allowed, would have resulted in fresh trial, after the decree was set-aside and, therefore, there was no occasion to execute the ex-parte decree. This is, in fact, not so. This is, in fact, not so. As is clear, there was a prayer for setting aside the ex-parte decree and had that prayer been allowed, then ex-parte decree would have stood set-aside and a fresh trial would have commenced, but so long as it was not so, the decree stood and was executable. Therefore, in view of specific provision of Article-135 of the Limitation Act, the limitation cannot be governed by the result or by the date of dismissal of the application for setting aside the exparte decree. The learned counsel for the applicant has also urged that there was an under-taking given, during the course of the proceedings by the non-applicants, that they would allot the applicant house as and when the non-applicants construct a house of the nature described in the decree and, therefore, having not been allotted a house in the afore-said manner, in pursuance of the undertaking, the applicant/decree-holder was forced to execute the decree. The applicant, in fact, should get the limitation from the date of undertaking. It may be pointed out that there is neither a ground raised in the revision to the above effect nor it appears to be fortified by any law. There appears to be no provision in law of limitation whereby an undertaking during the execution proceeding, would give rise to a fresh period of limitation to the decree-holder. 8. It was also urged by the learned counsel for the applicant/decree-holder that since the decree did not specify any particular time or date for the compliance of the decree of mandatory injunction, therefore, a reasonable time should be granted by the executing Court for its performance, and this should result in enlargement of period of limitation, which should be computed from the expiry of such reasonable time, for the execution of the decree of mandatory injunction. There appears to be nothing to import the above meaning or construction regarding computation of period of limitation. In fact, Article 135 of Limitation Act is very clear in terms and states that limitation of 3 years for the enforcement of decree granting a mandatory injunction shall be counted from the date of the decree or where a date is fixed for performance, such date. In the present case, no date of performance of decree having been specified, the date of the decree would be the governing factor for computing period of limitation. 9. In the present case, no date of performance of decree having been specified, the date of the decree would be the governing factor for computing period of limitation. 9. In view of the above, the grounds urged by the learned counsel for the decree-holder/applicant cannot be accepted and it appears that the execution application was time-barred, when it was filed in the executing Court and has, therefore, been rightly dismissed by the impugned order. 10. The revision, therefore, appears to be devoid of substance and deserves to be dismissed. It is accordingly hereby dismissed. No order as to costs, in the circumstances of the case.