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2007 DIGILAW 226 (CHH)

Jineshwari Devi v. Durgeshwari @ Pila Bai Panigrahi

2007-03-22

D.MISHRA

body2007
ORDER Dhirendra Mishra, J. 1. This civil revision is directed against the order dated 21-9-2000 passed in Execution Case No. 157-A/2000 by learned First Civil Judge Class II, Jagdalpur, Distt. Bastar whereby the objection of the applicants with respect to maintainability of execution proceedings on the ground of limitation has been rejected and in execution of the decree dated 2-9-1987 passed in Second Civil Appeal No. 142/83 by the High Court of M.P., warrant of possession of the suit house and attachment warrant for recovery of decretal amount of Rs. 178.45/-has been issued against the applicant. 2. Learned Counsel for the applicants submits that undisputedly the decree was passed on 2-9-1987 and execution proceeding was initiated by decree holder only on 28-4-2000 which is beyond the period as prescribed under Article 136 of the Limitation Act (henceforth 'the Act'). He further submits that the applicants' objection has been rejected with an observation that execution proceedings pertains to a decree of mandatory direction whereby the appellant (Smt. Durgeshwari alias Pila Bai Panigrahi; respondent No. 1 herein) is held to be lawful owner and title holder of the suit house and entitled to obtain the possession of the same from the respondents/defendants. The decree accordingly was passed. Thus, by the said decree, a mandatory direction has been issued by the High Court of M.P. and for such decree no limitation for execution has been prescribed. He submits that the decree in fact was for possession of the suit house and, therefore, for the purposes of limitation, Article 136 of the Act is attracted and the order impugned is contrary to the provisions of Article 136 of the Act and the same should be set aside. 3. On the other hand, learned Counsel for the non-applicants/plaintiffs submits that though execution proceedings were initiated beyond the prescribed period of limitation under Article 136 of the Limitation Act, but the decree holder could not file execution proceeding in view of the fact that brother of the decree holder had filed a civil suit against the judgment debtor and decree holder for declaration and possession of the suit property, which was ultimately dismissed in the year 1995 and in these circumstances, the period of limitation commences from the year 1995 when the subsequent suit was dismissed and as such, the same was within limitation. 4. 4. We have heard learned Counsel for the parties and have perused the impugned order as also the decree dated 2nd September, 1987 passed in S.A. No. 142/83. 5. By the above decree the judgment and decree passed by the learned lower Appellate Court was set aside and the appeal preferred by the respondent No. 1 plaintiff was allowed and she was held to be lawful owner and title holder of the suit house and entitled to obtain possession of the same from the applicants/judgment debtor. A decree accordingly has been passed. 6. From bare perusal of the above decree it is manifestly clear that a declaratory decree has been passed in favour of the respondent No. 1 plaintiff to the effect that she is lawful owner and title holder of the suit house and entitled to obtain possession of the same from the applicants/judgment debtor. The Executing Court rejected the objection against the enforceability of the decree on the ground that the decree, in fact, is for declaration, ownership, title and mandatory direction, for which no limitation is prescribed. Articles 135 and 136 of the Act are reproduced as under: Description of suit Period of limitation Time from which period begins to run 135. For the enforcement of a Three years The date of the decree or decree granting a mandatory where a date is fixed for injunction. performance, such date . 136. For the execution of any decree Twelve years * * * (other than a decree granting a mandatory * * * injunction )or order of any Civil Court Provided that an application for the enforcement or execution of a perpetual injunction shall not be subject to any period of limitation 7. The finding of the trial Court that decree of declaration and mandatory direction, has been passed in favour of the decree holder is, on the face of the decree, incorrect as a decree in no uncertainty specifically provides that the decree holder is entitled to obtain possession of the suit accommodation from the applicant/judgment debtor and as such, is a decree for possession. Article 135 of the Act provides a limitation of three years for enforcement of the decree granting a mandatory injunction whereas Article 136 of the Act provides a limitation of 12 years for execution of any decree (other than a decree granting a mandatory injunction) or order of any Civil Court. Article 135 of the Act provides a limitation of three years for enforcement of the decree granting a mandatory injunction whereas Article 136 of the Act provides a limitation of 12 years for execution of any decree (other than a decree granting a mandatory injunction) or order of any Civil Court. Therefore, the finding of the trial Court that for execution of the above decree, no limitation is prescribed and the decree is enforceable, is contrary to the facts and law and the same cannot be sustained. 8. So far as submission of learned Counsel for the respondents/plaintiffs that the respondents could not initiate execution proceedings within a period of 12 years because of pendency of a suit with respect to the same suit accommodation between brother of the decree holder and judgment debtor and decree holder, which was dismissed in the year 1995 is concerned, pendency of another civil suit shall not arrest the period of limitation as the same starts running when the decree becomes enforceable. In the instant case, there is no dispute that the decree in question became enforceable on the date of pronouncement Le., 2nd September, 1987 and the execution proceedings were initiated only on 28th April, 2000, admittedly beyond the period of 12 years and as such, the same was barred by limitation as per Article 136 of the Act. 9. In the result, the revision is allowed, order impugned is set aside and the proceedings initiated by the decree holder for execution of the decree dated 2nd September, 1987 passed in S.A. No. 142/83 are held to be irretrievably barred by limitation.