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2004 DIGILAW 984 (RAJ)

Kanahiya Lal v. Thakurji Shri Keshoraiji

2004-07-16

A.C.GOYAL

body2004
JUDGMENT 1. - This revision has been preferred by the defendant/judgment-debtor against the order dated 16.2.1996 whereby the objections filed by the judgment-debtor under Section 47 Criminal Procedure Code were dismissed. 2. The relevant facts in brief are that the plaintiff Sh. Thakurji filed a suit in the year 1978 for removal of the defendant as Pujari and for possession of the temple and its movable and immovable properties, The defendant Sh. Kanahiya Lal was appointed as a Pujari of this temple. Giving the details in the plaint the prayer for decree as stated hereinabove was made. 3. The defendant in his written statement having admitted himself to be the Pujari denied all the allegations made in the plaint regarding his removal as well as possession claimed by the plaintiffs. 4. The trial Court framed 12 issues. Thereafter, the defendant failed to appear in the court, hence the court proceeded ex parte vide order dated 13.10.1982. After the evidence of the plaintiff the suit was decreed vide judgment dated 18.2.1983. 5. An execution application was filed on behalf of the plaintiffs on 1.5.1984 and the same was dismissed in default on 4.11.1985. Thereafter, an application for restoration of the execution application was filed by the plaintiffs on 4.5.1995, but the same was dismissed as not maintainable on 10.11.1995. 6. Meanwhile an application under Order 9 Rule 13 C.P.C. alongwith an application making a prayer for staying the execution of the decree was filed on 6.8.1984 by the defendant. This application alongwith stay application was dismissed on 26.11.1994 on the ground that this application under Order 9 Rule 13 C.P.C. has been filed beyond prescribed period of limitation. 7. Thereafter, second application for execution of the decree was filed in the trial Court on 10.11.1995. The defendant-judgment-debtor filed objections under Section 47 C.P.C. On 8.12.1995 on the ground that this second application for execution of the decree since filed beyond the period of 12 years, is barred by limitation. Learned Civil Judge (Junior Division) Jaipur City (East), Jaipur dismissed the objections vide impugned order dated 16.2.1996. 8. I have heard learned counsel for the parties. It is not in dispute that according to Article 136 of the Limitation Act, 1963 (in short the Act) a period of 12 years has been prescribed for the execution of the decree. Learned Civil Judge (Junior Division) Jaipur City (East), Jaipur dismissed the objections vide impugned order dated 16.2.1996. 8. I have heard learned counsel for the parties. It is not in dispute that according to Article 136 of the Limitation Act, 1963 (in short the Act) a period of 12 years has been prescribed for the execution of the decree. This decree was passed on 18.2.1983 and the second application for execution of the decree was filed on 10.11.1995, and thus it was beyond the period of 12 years. 9. Section 15 of the Act provides that in computing the period of limitation of any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded. 10. These facts are also not in dispute that application under Order 9, Rule C.P.C. for setting aside the ex parte decree alongwith an application for staying the execution of the decree was filed on 6.8.1984. On stay application, the trial Court stayed the execution of the decree on 9.8.1984. This stay order was extended on 13.8.1984, on 17.8.1984 upto 22.8.1984. As per order sheet dated 17.8.1984, this stay application was to be listed on 22.8.1984. Instead of 22.8.1984 this stay application was placed before the trial Court on 25.8.1984 and it was adjourned from time to time till its dismissal on 26.11.1994 alongwith dismissal of the application under Order 9 Rule 13 Civil Procedure Code. The subsequent order-sheets from 25.8.1984 till dismissal of this application are silent on the point of staying the execution of the decree. 11. This question was considered by the trial Court. It was contended on behalf of the judgment-debtor that only period from 9.8.1984 on 22.8.1984 during which the execution remained stayed can be excluded under Section 15 of the Act. The trial Court negatived this contention and observed that the order staying the execution of the decree was never vacated and it continued till 26.11.1994 the day on which the application under Order 9, Rule 13 C.P.C. was dismissed alongwith stay application. The trial Court negatived this contention and observed that the order staying the execution of the decree was never vacated and it continued till 26.11.1994 the day on which the application under Order 9, Rule 13 C.P.C. was dismissed alongwith stay application. It was also observed that since first execution application was dismissed on 4.11.1985 the decree holder has got a right to exclusion of the period upto 4.11.1985. 12. Learned counsel for the petitioner-judgment-debtor contended that the period only from 9.8.1984 to 22.8.1984 can be excluded and thereafter no stay order was in operation, hence subsequent period upto 26.11.1994 could not have been excluded and mere pendency of the application under Order 9, Rule 13 C.P.C. is not enough to exclude the subsequent period till dismissal of this application. He placed reliance upon Bhawanipore Banking Corporation Ltd. v. Gouri Shankar Sharma, AIR 1950 Supreme Court 6 , wherein it was held that application under Order 9, Rule 9 C.P.C. does not stop the limitation. Similar view was taken in Fakir Chand Mondal and another v. Daiba Charan Parui and another, AIR 1927 Calcutta 904. In Chandmal v. Baburmal, R.L.W. 1951 page 227 it was held that the word 'appeal' does not contemplate appeal from an order dismissing application made to set aside the ex parte decree. In Balwant Singh v. Budh Singh and others, Indian Cases 1920 page 1006 , it was held that when the injunction to execute the decree is dismissed, the bar of execution also comes to an end. In Radhey Shyam Jaiswal (dead) & Ors. v. Smt. Ram Dulari Devi & Ors., 1996 D.N.J. (SC) 242 , it was held in view of Section 48 C.P.C. (now repealed) that application for execution of the decree cannot be filed beyond the period of 12 years. 13. On the other hand it was contended by learned counsel for the decree- holders that the stay order staying the execution of the decree was never vacated and it remained in force till dismissal of the application under Order 9 Rule 13 Civil Procedure Code and in view of this stay order the decree holder was not in a position to apply for execution and the learned trial Court has not committed any illegality. He placed reliance upon one judgment of this Court delivered on 24.4.1986 in S.B. Civil Revision Petition No. 135, 1986 Radhey Shyam v. Ganga Prasad. He placed reliance upon one judgment of this Court delivered on 24.4.1986 in S.B. Civil Revision Petition No. 135, 1986 Radhey Shyam v. Ganga Prasad. This judgment is not on the point of exclusion of the period of limitation. It was held in this judgment that the mistake of the court should not be allowed to prejudice the rights of other party and it is for the court to see that no party gets undue advantage on account of an act of the Court or its official. He also placed reliance upon Baluk Chand Lal and another v. Nathuni Singh and another, AIR 1916 Patna 30 , Gulzari Lal v. Ram Bhajan, AIR 1919 Oudh 375 , Govinda Nath Chaudhari v. Basiruddin Mandal, AIR 1921 Calcutta 606 , Jyoti Prakash Nandi v. Mukti Prakash Nandi, AIR 1924 Calcutta 485 , Santi Raman Dass Gupta v. M/s. Dasuram Mirzamal, AIR 1976 Supreme Court 2486 and Jangli v. Lala, AIR 1954 Madhya Bharat 61. In view of these judgments it is settled position of law that where a decree holder is restrained from executing his decree by an injunction issued by a court in a suit to setaside that decree, the period during which the injunction remained in force should be excluded in computing the period of limitation within which the decree must be executed. 14. In the instant case, the trial Court recorded the separate proceedings of application under Order 9, Rule 13 C.P.C. as well as application for staying the execution proceedings. No doubt, the stay order was extended on 17.8.1984 upto 22.8.1984 and thereafter the application under Order 9, Rule 13 C.P.C. was placed before the Presiding Officer on 22.8.1984 but the application for staying the execution of the decree was placed on 25.8.1984 instead of 22.8.1984. On subsequent dates, no specific order of stay was passed by keeping in view the entire facts and circumstances of the instant case and the impression under which the decree holder was going on that execution proceedings are stayed, I find that the trial Court did not commit any impropriety or illegality in excluding the period upto 26.11.1994 on the ground that the order staying the execution of the decree was never vacated and it continued in force till 26.11.1994. 15. Consequently, this revision petition is hereby dismissed. Records of the Execution Court be sent back within two weeks from today.Revision allowed. 15. Consequently, this revision petition is hereby dismissed. Records of the Execution Court be sent back within two weeks from today.Revision allowed. *******