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2001 DIGILAW 78 (KER)

Bhaskaran v. Sreedharan

2001-02-02

K.A.MOHAMMED SHAFI

body2001
Judgment :- K.A. Mohamed Shafi, J. This C.R.P. is filed by the plaintiff- respondent in E.P. 6/99 in O.S. No. 40/77 on the file of the Munsiff's Court Wadakancherry assailing the order dated 17.6.2000. In that E.P. filed by the respondent -1st defendant delivery of possession of the property is ordered in favour of the respondent herein petitioner in the E.P. overruling the objections raised by the petitioners here. 2. The petitioner has contended that the decree is not executable against him, the execution petition is barred by limitation and res judicata against him. 3. The revision petitioner herein and the respondent are brothers. The revision petitioner as plaintiff filed O.S.40/77 before the Munsiff's Court, Wadakancherry for partition of the plaint schedule property. During the pendency of the suit a compromise petition in I. A. 798/79 was filed and a decree was passed in terms of the compromise on 18.10.1979. As per the compromise the suit property was valued at Rs. 12,500/-. The 1st defendant, respondent herein is to pay Rs. 6.250/- to the plaintiff, petitioner herein being the value of his share on or before 6.2.1980 and the plaintiff to execute a release deed in his favour. It was also provided that the plaintiff and his family can reside in the property for two more months from the date of the decree to enable them to obtain alternate accommodation. It was further provided that if the 1st defendant did not pay the plaintiff Rs. 6250/- as stipulated in the decree, the plaintiff can pay Rs. 5250/- to the 1st defendant and obtain release of the rights of the 1st defendant. 18.12.1979 was fixed as the date for delivery of the house by the plaintiff. The plaintiff did not deliver possession of the house to the 1st defendant. The 1st defendant did not pay the amount of Rs. 6250/- to the plaintiff as on 6.2.1980. The plaintiff sent a registered lawyer notice to the 1st defendant stating that he is prepared to pay the amount of Rs. 5250/- and the 1st defendant should execute a release deed in his favour. The 1st defendant caused to send a reply dated 29.2.1980 refuting the allegations made in the lawyer notice. On 14.7.1980 the plaintiff, petitioner herein filed E.P. 63/80 for execution of the decree. The 1 t defendant, the respondent herein thereafter filed E.P. 28/81 on 5.3.1981. The petitioner deposited Rs. The 1st defendant caused to send a reply dated 29.2.1980 refuting the allegations made in the lawyer notice. On 14.7.1980 the plaintiff, petitioner herein filed E.P. 63/80 for execution of the decree. The 1 t defendant, the respondent herein thereafter filed E.P. 28/81 on 5.3.1981. The petitioner deposited Rs. 5250/- before the executing court on 6.3.1981. By order dated 13.11.1981 the executing court dismissed E.P. 28/81 filed by the respondent herein holding that he is a defaulter and he has forfeited his right under the decree. That order is not challenged by the respondent. 4. Subsequently on 26.2.1983 the executing court allowed E.P. 63/80 filed by the petitioner herein. The respondent filed C.R.P. No. 1580/83 before this court challenging the order in E.P. 63/80. This court by order dated 1.11.1985 allowed the CRP and dismissed E.P. 63/80. In that C.R.P. this court found that the respondent will get the right to seek release deed from the petitioner only after 50 days of the petitioner vacating the house. Thereafter the respondent deposited Rs. 6250/- before the executing court on 2.1.1986. S.1.P. preferred by the revision petitioner against the order passed by this Court in CRP No. 1580/83 is dismissed by the Supreme Court on 4.4.1991. The respondent filed E.P. 6/99 before the trial court on 2.1.1999. The V executing court by the impugned order allowed the E.P. and directed the petitioner to deliver the property to the respondent negativing the contentions raised by him. Hence this CRP is preferred by the petitioner before this court. 5. The petitioner has contended that the above E.P. filed by the respondent is barred by time since it is filed only on 2.1.1999. 6. It is not disputed that 18.12.1979 is the date fixed in the compromise decree for the petitioner to vacate the building. Therefore, according to the petitioner, under Art.136 of the Limitation Act, the period of 12 years runs from that date. Art.136 of the Limitation Act stipulates 12 years as the period of limitation when the decree or order becomes enforceable or the decree or any subsequent order directs any payment of money or delivery of any property to be made at a certain date or recurring periods when default in making the payment or delivery in respect of which execution is sought, takes place. Therefore, the petitioner has contended that the above E.P. not filed within 12 years from 18.12.1979, the date fixed for deli very of possession of the property by the petitioner to the respondent in the compromise decree or within 12 years from 2.1.1986, the date of deposit of the amount by the respondent or within 12 years from the date of order passed by this Court in C.R.P. No. 1580/83 on 1.11.1985 finding that the respondent will get the right to seek release deed from the petitioner only after the petitioner vacated the building, is hopelessly barred by limitation. 7. The counsel for the petitioner also submitted that the period or mode of limitation fixed by the statute will work by itself and cannot be extended and the period of limitation cannot be extended by consent of the parties. He has also submitted that in the E.P. the respondent has not raised any plea regarding exclusion of time or saving limitation. He has further submitted that the provisions of Ss.14 and 15 of the Limitation Act have no application to the facts of this case and therefore, the E.P. filed by the respondent is hopelessly barred by time. 8. It is contended by the respondent that there was dispute and confusion with regard to the date when the decree became executable in this case and finally this Court held in the order in CRP No. 1580/83 dated 1.11.1985 that it is only after the petitioner-plaintiff complied with the obligation to surrender possession of the property as per the decree, the role to be performed by the respondent-defendant comes to play and that order passed by this court in the C.R.P. was taken up by the petitioner before the Supreme Court in SLP No. 1036/86, which was dismissed on 4.4.1991. 9. It is clear from the order passed by this Court in the C.R.P. that the condition precedent is for the petitioner to perform his obligation to vacate the premises and deliver the property to the respondent and then only the obligation of the respondent to pay the amount arises. Therefore, until delivery of possession of the property is given by the petitioner to the respondent, time under Art.136 of the Limitation Act will not begin to run and the right of the respondent will subsist. Therefore, until delivery of possession of the property is given by the petitioner to the respondent, time under Art.136 of the Limitation Act will not begin to run and the right of the respondent will subsist. It has to be noted that the above finding with regard to the fulfillment of the obligation by the petitioner is precondition for the respondent to fulfill his obligation is only crystallised by the judgment of this court in the CRP dated 1.11.1985 and that finding of this court is upheld by the Supreme Court only by the dismissal of the S.1.P. No. 1036/86 filed by the petitioner, by order dated 4.4.1991. The above E.P. is filed within 12 years from the date of disposal of the S.1.P. 10. Even though it is contended by the petitioner that nothing is stated in the E.P. with regard to the saving of limitation or extension of time in para 11 of the EP the respondent has stated all facts that transpired after the passing of the compromise decree in the year 1979 till the disposal of the SLP filed by the petitioner before the Supreme Court on 4.4.1991. Therefore, the contention of the petitioner that the above E.P. is barred by limitation since it is not filed within 12 years as contemplated under Art.136 of the Limitation Act is not sustainable and the contention of the respondent that he has been waiting till the final adjudication of the matter by the apex Court in the S.1.P. and on the dismissal of the SLP confirming the order passed by this court in the CRP on 4.4.1991 he filed the above EP on 2.1.1999 within 12 years from the date of disposal of the SLP and therefore, the E.P. is not barred by limitation under Art.136 of the Limitation Act has to be accepted. 11. In view of the finding of this Court in the CRP and the confirmation of the same by the Supreme Court in the SLP the contention of the petitioner that the clause to vacate the premises should be enforced with reference to the Limitation Act from the date fixed for vacation of the property and that clause cannot be enforced after 20 years by the respondent, is not sustainable. 12. In the decision in Deep Chandv. 12. In the decision in Deep Chandv. Mohan Lai ((2000) 8 SCC 259) the Supreme Court has observed as follows: "In case where the language of the decree is capable of two interpretations, one of which assists the decree-holder to obtain the fruits of the decree and the other prevents him from taking the benefits of the decree, the interpretation which assists the decree-holder should be accepted. The execution of the decree should not be made futile on mere technicalities which does not, however, mean that where a decree is incapable of being executed under any provision of law it should, in all cases, be executed notwithstanding such bar or prohibition. A rational approach is necessitated keeping in view the prolonged factum of litigation resulting in the passing of a decree in favour of a litigant. The policy of law is to give a fair and liberal and not a technical construction enabling the decree-holder to reap the fruits of his decree." The Supreme Court has further observed as follows: "The High Court has rightly held that the decree for possession of the land became enforceable only after the execution of the sale deed as was the direction of the Court decreeing the suit. Before the execution of the sale deed in his favour on 23.3.1984, the decree-holder was not entitled to possession in terms of the decree. The decree, therefore, itself directed its execution after the execution of the sale deed in favour of the decree-holder." 13. The above dicta laid down by the Supreme Court are squarely applicable to the facts of this case. 14. The contention of the petitioner that since E.P. No. 28/81 filed by the respondent was dismissed by the executing court and that order has become final as it was not challenged by the respondent in appeal or revision, the claim of the respondent is barred by res judicata is not sustainable. Even though the E.P. filed by the respondent was dismissed finding that the respondent has forfeited his right, in the E.P. filed by the petitioner against the respondent with regard to the execution of the very same decree. This Court has found that the right of the respondent is not forfeited and he is entitled to enforce the same. Even though the E.P. filed by the respondent was dismissed finding that the respondent has forfeited his right, in the E.P. filed by the petitioner against the respondent with regard to the execution of the very same decree. This Court has found that the right of the respondent is not forfeited and he is entitled to enforce the same. Therefore, the finding of the executing court that the respondent has forfeited his right to execute the decree is in effect overruled by this court and that finding is upheld by the apex court. Therefore, the finding of the executing court in the E.P. filed by the respondent that he has forfeited his rights in the decree will not operate as res judicata against the respondent in the present E.P. 15. The contention of the petitioner that since the SLP preferred by the petitioner against the order passed by this court in the CRP was dismissed in limine, the order passed by this Court will not merge with the order passed by the Supreme Court in the SLP is not sustainable. In this case the respondent has not pleaded any merger of the order passed by this Court in the CRP with the order passed by the Supreme Court in the SLP. The respondent has only contended that the rights of himself and the petitioner with regard to the execution of the decree were only finally decided and crystallised by the judgment of this Court in the CRP which was challenged by the petitioner before the Supreme Court without success. Till then as there was no definite finding as to when the decree became executable in this case, time for limitation will run only from the date of disposal of the SLP by the Supreme Court, though the SLP was dismissed in limine without adjudicating the contentions raised by the petitioner on merits. 16. It is clear from the above discussions that the contentions raised by the petitioner against the executability of the decree and the right of the respondent to execute the decree against him and also the plea of limitation raised by the petitioner against the executability of the decree, are absolutely unsustainable and the order passed by the lower court is absolutely legal, just and proper. Therefore, I find absolutely no ground to interfere with the impugned order passed by the lower court. Therefore, I find absolutely no ground to interfere with the impugned order passed by the lower court. Hence the order passed by the lower court is confirmed and the revision petition is dismissed.