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2013 DIGILAW 390 (RAJ)

LR’s of Badan Singh v. Kewal Raj Singhvi

2013-02-14

GOPAL KRISHAN VYAS

body2013
JUDGMENT 1. - Instant revision petition has been filed by the petitioner against order dated 06.07.2002 passed by the Addl. Civil Judge (Jr. Dn.) First Class No.1, Jodhpur whereby objection raised by the decreeholder in the execution proceedings against the petitioner that he is not entitled to be heard was rejected and the executing Court gave finding that execution proceedings initiated by the decree-holder is within limitation. 2. The petitioner is challenging the said order to the extent of the finding given by the executing Court with regard to rejecting the contention of the petitioner objector that execution proceedings is time-barred. 3. Learned counsel for the petitioner submits that admittedly the judgment and decree was passed by the trial Court on 23.02.1966 and the execution proceedings was initiated in the year 1996 in which the petitioner filed an application under Order 21 Rules 97 and 98, read with Section 151, C.P.C. on 08.05.2000; and, after filing reply by the decree-holder to the objection petition, the objector Badan Singh died and, thereafter, an application under Order 22 Rule 3, C.P.C. was filed for taking the LRs of objector on record and the same was allowed. 4. In the objection petition, apart from other objections, an objection was raised by the petitioners that execution proceedings is barred by limitation under Section 136 of the Limitation Act i.e., beyond prescribed limitation of 12 years, therefore, the proceedings may be dismissed as not maintainable. In reply filed by the decree-holder, it is stated that on 23.12.1966 a receiver was appointed over the disputed land in separate suit for declaration of title pending in between decree-holder and other party and the same was decreed on 03.10.1996, therefore, the execution proceedings is within limitation. Learned executing Court dismissed the objection of the petitioner on the ground of limitation, therefore, the petitioner is challenging the validity of the said order contending that the finding for not dismissing the execution proceedings as time-barred is illegal. 5. Learned executing Court dismissed the objection of the petitioner on the ground of limitation, therefore, the petitioner is challenging the validity of the said order contending that the finding for not dismissing the execution proceedings as time-barred is illegal. 5. According to the petitioner, limitation for execution commenced from the date when decree-holder became enforceable and admittedly the judgment and decree was passed in favour of the respondent-decree holder on 23.02.1966 and execution proceedings has been filed in the year 1996, therefore, condoning delay on the ground that receiver was appointed on 23.12.1966 and the property in question remained in possession of the receiver till 31.12.1996, therefore, the important aspect of the matter that as per entry 136 of the Schedule appended to the Limitation Act, 1963, the decree becomes enforceable from the date of judgment but execution proceedings was not filed within 12 years, as such, the order impugned deserves to be quashed. 6. In support of his contention, learned counsel for the petitioners invited my attention towards two judgments reported in, AIR 1964 Orissa 215, Bholanath Naik & Others v. Krupasindhu Naik & Others and AIR 1964 S.C. 227 , A.S.K. Krishnappa Chettiar and other appellants v. S.V.V. Somiah @ Navniappa Chettiar & Another , and submits that order impugned is totally illegal because the ground taken by the executing Court for condonation of delay is totally illegal. 7. Per contra, learned counsel for the respondent submits that first of all the petitioners cannot raise any objection because the petitioners are claiming right as tenant of the land in question, in which, original tenant objector became tenant in the month of October 1966 after 8 months from the date of decree, therefore, obviously on this ground alone that the date on which the decree was passed in favour of the respondent-decree holder the petitioner-objector was not in possession and party in the proceedings. Although this contention has been rejected by the executing Court and petitioner has not challenged but, for the purpose of limitation, it is submitted that no error has been committed by the executing Court while holding that the decree was not enforceable during the period from 23.12.1966 to 31.12.1996 because during this period the property in question was in possession of the receiver. 8. 8. Learned counsel for the respondent-decree holder invited attention of the Court towards judgment of the Hon'ble Supreme Court reported in (2004) 12 SCC 469 , Akkayanaicker v. A.A.A. Kotchandainaidu & Another , and submits that the Hon'ble Supreme Court after considering Article 136 of the Limitation Act held that the enforceability of the decree would commence from the date on which the decree becomes capable of execution. Therefore, no interference is required in the impugned order. 9. After taking into consideration entire facts it emerges that the petitioners themselves are not disputing the fact that the date on which the decree was passed they were not party in the proceedings nor the original objector was in possession as tenant and his case is that he became tenant in the month of October 1966, therefore, he is raising objection that execution proceedings is barred by limitation. 10. In my opinion, once the fact of possession having remained with the receiver is admitted, then, contention of the petitioners cannot be accepted that they are tenant of the property in question. Further, if the property in question was in possession of the receiver as per order passed by the competent Court, then, too, it cannot be said that during that period the decree was enforceable. 11. I have perused the judgments cited by both the parties. The facts of the cases cited by learned counsel for the petitioners are not applicable upon the facts of the present case because the petitioners are claiming lis being tenant in the property in question. Therefore, the judgments cited by learned counsel for the petitioner are not relevant for the purpose of deciding the controversy in this case. The executing Court has already passed an order to decide the objections in accordance with law. 12. Therefore, this revision petition is hereby dismissed with direction to the executing Court to decide the execution proceedings and objection raised by the petitioners within a period of 6 months from the date of receiving certified copy of this order.Revision dismissed. *******