Research › Search › Judgment

Jharkhand High Court · body

2009 DIGILAW 1156 (JHR)

Shakuntala Debi v. Bimal Kumar

2009-08-19

R.K.MERATHIA

body2009
Order This Civil Revision Application is directed against the order dated 10.7.2006, passed by learned Sub Judge-I, Ranchi dismissing the Execution Case No. 8 of 2004 filed by the petitioners holding the same as barred by law of limitation. 2. The parties were heard at length. Mr. B.K. Prasad, learned counsel appearing for the petitioners, submitted that the said execution case was not barred by limitation as the decree could be put in execution only after it became enforceable. 3. On the other hand, Mr. Rohit Roy, learned counsel for the opposite parties, supported the impugned order and submitted that the execution case was hopelessly barred by limitation. 4. The only question involved in this Civil Revision Application is whether the said execution case was filed beyond the period of limitation? 5. The answer would be in the negative for the following reasons. 6. One Kishori Lal Kasera filed a suit-registered as Partition Suit No. 131 of 1962 (which will be referred as ‘the first suit’). Father of opposite party-Kishori Lal Kasera was defendant no. 3, who appeared in the suit. A compromise decree was passed in the said suit on 20.3.1964 ex parte against the said defendant no. 3 Kishori Lal Kasera and defendant no. 10. It was clearly mentioned in the compromise decree that the parties were in possession of their respective shares allotted to them. No step was taken by the father of the opposite parties for setting aside the said ex parte compromise decree and no objection was raised by him or any of the parties for about 9 years. Then Kishori Lal Kasera filed a suit which was registered as. Partition Suit No. 49 of 1973 challenging the said compromise decree passed in first suit on the ground of fraud (which will be referred to as 'the second suit'). He claimed 1/11th share and fresh partition. The second suit continued for about 21 years and ultimately it was dismissed on merits on 27.8.1994. Against such dismissal, the said Kishori Lal Kasera preferred an appeal being Title Appeal No. 109 of 1994. After he died, the opposite parties were substituted. The said appeal was also dismissed on 6.1.2004. The petitioners filed the present execution case registered as the Execution Case No. 8 of 2004 on 10.5.2004. The delay in filing the same was also explained. After he died, the opposite parties were substituted. The said appeal was also dismissed on 6.1.2004. The petitioners filed the present execution case registered as the Execution Case No. 8 of 2004 on 10.5.2004. The delay in filing the same was also explained. The predecessor Judge, after looking into the relevant documents admitted the said execution case, but, by the impugned order the successor Court dismissed it on the ground that it was hopelessly barred by limitation, which is under challenge in this Civil Revision Application. 7. Learned Sub-Judge failed to take into consideration -(i) that no steps were taken and no objection was raised by father of the opposite parties for setting aside the ex parte decree passed in the first suit, if he was aggrieved by it, for about 9 years, though he. had appeared and had full knowledge about the first suit; (ii) that as per the compromise decree, the parties were in possession of their respective shares allotted to them and accordingly neither preliminary, nor. final decree was drawn up and there was no occasion for the petitioners for filing execution case for enforcement of the compromise decree; (iii) that the second suit challenging the compromise decree passed in the first suit remained pending for about 21 years; (iv) that the appeal filed against the dismissal of the second suit also remained pending for about 10 years; (v) that after the appeal was dismissed and the judgment and decree passed in second suit became final, the execution case was filed by the petitioners alleging dispossession from the family business being run in the ground floor of the building; and (vi) that on the basis of such allegation, the compromise decree passed in the first suit became enforceable. 8. In view of Article 136 of the Limitation Act, the petitioners could file the application for execution of the decree passed in the first suit as it became enforceable, after dismissal of the said appeal. Moreover, when the predecessor Court admitted the execution case presumably, after condoning the delay, the executing court should not have dismissed it on the ground of limitation, rather should have heard the parties on merits in the execution case. The judgment reported in 2009(3) JLJR 90 -Bharti Devi vs. Fagu Mahto, relied on behalf of the petitioners, also support the contention of the petitioners. It may be noted here that Misc. The judgment reported in 2009(3) JLJR 90 -Bharti Devi vs. Fagu Mahto, relied on behalf of the petitioners, also support the contention of the petitioners. It may be noted here that Misc. Case No. 1 of 2004 filed by the opposite parties for re-admission of Title Appeal No. 109 of 1994 was also dismissed on 3.10.2008, though an appeal- Misc. Appeal No. 369 of 2008 is said to be pending in this Court against the said order dated 3.10.2008. Thus, in my opinion, the execution application filed by the petitioners, registered as Execution Case No. 8 of 2004, was not barred by limitation. 9. It is made clear that this order is confined to the correctness of the impugned order i.e. on the question whether the Execution Case No. 8 of 2004 is maintainable or not. The observations made in this order, if any, will not prejudice the parties in other proceedings. 10. In the result, this Civil Revision Application is allowed and the impugned order is set aside. The parties are directed to cooperate in early disposal of the execution case and the Executing Court will dispose of the same expeditiously and preferably within four months from the date of receipt/production of a copy of this order, in accordance with law, on merits. No costs.