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2007 DIGILAW 409 (ORI)

ARAKHITA NAIK v. NARASINGH NAIK

2007-06-18

A.S.NAIDU

body2007
( 1 ) THE judgment-debtors are petitioners in this Writ application. ( 2 ) T. S. No. 50 of 1964 was filed by the opposite party as the sole plaintiff in the court of the then Munsif, Berhampur. The suit was decreed on 6-8-1973, directing the sole defendant Bharat Naik to deliver the suit schedule property to the plaintiff. Against the said decree the defendant preferred an appeal before the 'then Addl. ' sub-ordinate Judge, Berhampur which was registered as T. A. No. 21 of 1976 (T. A. 78 of 1973 ). The appellate Court by judgment arid decree passed on 7-10-1977 confirmed the decree of the trial Court and dismissed the appeal with costs. Thereafter the plaintiff-decree holder filed petition before the trial court on 14-8-1989 praying for execution of the decree for recovery of possession of the suit property which was registered as execution Petition No. 37 of 1989. The judgment-debtor appeared in Court and filed a petition under Section 47 read with Order 21, Rule 23 of the Code of Civil Procedure questioning the executability of the decree. The said petition was registered as MJC no. 14 of 1990. During pendency of the MJC judgment-debtor Bharat Naik died and the present petitioners being his heirs were sub-stituted in his place. On receipt of notice of the Execution Petition, the petitioners filed their objection under Order 21, Rule 23 read with Section 151 CPC specifically contending that the suit was decreed on 6-8-1973, and the Execution Petition having been filed on 14-8-1999, beyond the period of twelve years prescribed under the Limitation Act was not maintainable. The executing Court by order dated 24-8-1994 held that the decree was not executable as the Execution petition had been filed beyond twleve years of passing of the decree. Being aggrieved by the said order of the executing Court the decree-holder filed Civil Revision which was registered as C. R. No. 10 of 1999. The said civil Revision was heard and disposed of by the Addl. District Judge, Berhampur. The revisional Court after discussing the inter se contentions of the learned counsel for the parties and perusing the provisions of law by order dated 26-6-2000 allowed the revision and held that the Execution Petition having been filed within twelve years of passing of the decree in appeal, i. e. 7-10-1977, was maintainable. District Judge, Berhampur. The revisional Court after discussing the inter se contentions of the learned counsel for the parties and perusing the provisions of law by order dated 26-6-2000 allowed the revision and held that the Execution Petition having been filed within twelve years of passing of the decree in appeal, i. e. 7-10-1977, was maintainable. The said order dated 26-6-2000 of the revisional Court is assailed in this Writ application. ( 3 ) MR. S. S. Rao, learned counsel for the petitioners, drawing attention to Article 136 of the Limitation Act submitted that the decree in question was passed by the trial court on 6-8-1973 and the period of limitation started from that date. Once the period of limitation starts unless there is an order of stay it cannot be arrested. Thus filing of the Execution Petition in the year 1999 was grossly barred by limitation as the same was much beyond twelve years. He stated that the said aspect was not kept in mind by the learned revisional Court and the impugned order passed by it is not sustainable. According to him, the facts of the case reported in AIR 1974 SC 1380 , M/s. Gojer Bros. v. Ratanlal were distinctly separate from the present case and the revisional Court erred in allowing the revision relying upon the ratio of the said decision. ( 4 ) ARTICLE 136 of the Limitation Act prescribes the period of limitation for execution of a decree (other than a decree granting a mandatory injunction) or order by any civil Court to be twelve years, and the period of limitation to commence when the decree or order becomes enforceable or where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring period when delay in making the payment or delivery in, respect of which execution sought takes place. Thus the time will not run under Article 136 unless the decree sought to be enforced is in such form as to render it capable of being enforced. In order to make the provisions of the Limitation Act apply, the decree sought to be enforced must be in such a form as to render it capable, in the circumstances, of being enforced. In order to make the provisions of the Limitation Act apply, the decree sought to be enforced must be in such a form as to render it capable, in the circumstances, of being enforced. ( 5 ) LAW is no more res integra that an appeal preferred against a decree is a continuation of suit and the decree passed by the trial Court merges with that of the appellate Court. Article 136 introduced to the limitation Act, as would be seen, substantially reproducing the repealed Section 48 of the Code of Civil Procedure and replacing article 182 of the Old Limitation Act. Article 136 states that the period of limitation begins to run when a decree or order becomes enforceable. It does not say that it becomes executable. The repealed Section 48 CPC stipulated that no order for execution of a decree shall be made after expiration of twelve years from the date of the decree sought to be executed. The meaning of the words "from the date of the decree sought to be executed" in Section 48 (old) CPC and the words "where the decree or order becomes enforceable" in Article 136 are practically the same. Where an appeal is preferred against a decree passed by the trial court, law being that an appeal is continuation of a suit, and where an appellate Court passes a decree, the said decree replaces the decree passed by the trial Court and it is the decree of the appellate Court only which becomes enforceable and capable of execution and not the decree passed by the trial Court. Consequently the period of twelve years commences from the date of such appellate decree and not from the date of the decree of the trial Court as the original decree merges with that of the appellate court. Law is also well settled that if an appeal is preferred, the decree that can be enforced is that of the appellate Court and the period of limitation has to be reckoned from the date of that decree. ( 6 ) THE word 'decree' does not refer to the decree of the trial Court, or where an appeal had been preferred to the appellate decree. The reference is intended to the decree which disposes of the suit finally. ( 6 ) THE word 'decree' does not refer to the decree of the trial Court, or where an appeal had been preferred to the appellate decree. The reference is intended to the decree which disposes of the suit finally. It is well settled that when the trial Court decrees a suit, and the decree is challenged in a competent appeal, the appeal is considered as continuation of the suit and when the appellate decree affirms, modifies or reverses the decree on merit, the trial Court decree is said in law to merge in the appellate decree and it is the appellate decree which is enforceable (See Laxminarayan guin and others v. Niranjak Modak, AIR 1986 SC 111 ). ( 7 ) IT should always be kept in mind that the purpose of the execution proceeding is to enable the decree-holder to obtain the fruits of the decree and the policy of law is to give fair and liberal, and not a technical construction, enabling the decree holder to reap the fruits of the decree. In the case at hand, admittedly being aggrieved by the decree passed by the trial Court the defendant, predecessors of the present petitioners, had filed T. A. No. 21 of 1976 which was disposed of only on 30/9/1977. The Execution petition was filed in the year 1989. Thus the Execution Petition is within the period of limitation and is maintainable. The order of the revisional Court suffers from no infirmity and therefore this Court declines to interfere with the same. This Court accordingly dismisses the Writ application. Application dismissed.