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2014 DIGILAW 1345 (AP)

Land Acquisition Officer, Bodhan v. Gangadhar Rao

2014-11-06

M.SEETHARAMA MURTI

body2014
ORDER : M. Seetharama Murti, J. 1. This civil revision petition under Section 115 of the Code of Civil Procedure by the judgment debtor is directed against the orders dated 10.12.2013 of the learned Senior Civil Judge, Bodhan made in EA. No. 107 of 2013 in EP. No. 16 of 2011 in OP. No. 42 of 1987. 2. The introductory facts are as follows:- The respondent herein is the decree holder. Having obtained a decree, which has become final, the decree holder had filed the execution petition for realisation of the decree debt in a sum of more than Rs. 13 lakhs. In the said execution petition the decree holder had sought attachment of movable property of the judgment debtor. While the said execution petition is pending, the judgment debtor had filed E.A. No. 107 of 2013 requesting to dismiss the execution petition on the ground that the decree holder had not filed the execution petition within 12 years i.e., within the time allowed under law for execution of the decree. The said application was dismissed by the Court of execution holding inter alia that the execution petition is filed within the time allowed under law. Therefore, the judgment debtor had filed this civil revision.' 3. I have heard the submissions of the learned counsel for both the sides and perused the material record. 4. Now the points for determination are:- 1. Whether the Execution Petition was filed beyond the time allowed under law? And if so, whether the same is barred by the law of limitation? 2. Whether judgment debtor/revision petitioner made out valid and sufficient grounds for setting aside the impugned order and allowing the revision? 5. POINTS: 5. (a) The introductory facts are already stated supra. The only point to be considered is as to whether the execution petition filed by the decree holder is barred by the law of limitation. 5. 2. Whether judgment debtor/revision petitioner made out valid and sufficient grounds for setting aside the impugned order and allowing the revision? 5. POINTS: 5. (a) The introductory facts are already stated supra. The only point to be considered is as to whether the execution petition filed by the decree holder is barred by the law of limitation. 5. (b) The learned counsel for the judgment debtor had submitted that an execution petition in E.P. No. 60 of 1999 was originally filed by the decree holder and that the same was dismissed for non filing of the sale papers and that thereafter the decree holder had filed another E.P. 29 of 2003 and the same was also dismissed for non payment of process and that thereafter another E.P. 20 of 2007 was filed and that the said EP was also dismissed for not showing the schedule of property and that therefore, the present execution petition in E.P. 16 of 2011, which was filed on 08.05.2011 claiming an amount of Rs. 13 lakhs and odd as due and payable by the judgment debtor, is clearly barred by the law of limitation and that the court of execution had not decided the said question and had failed to give any finding on the aspect of limitation and had thus, erroneously dismissed the execution application filed by the judgment debtor requesting to dismiss the EP as the same was barred by law of limitation. 5. (c) On the other hand, the learned counsel for the decree holder would submit that the execution petition was filed well within time and that the Government, which is in the position of parens patriae, without paying the decree debt is raising an unholy contest and that the order of the court of execution, which is a well reasoned order, is sustainable and that the contention of the judgment debtor that the execution petition is barred by time is baseless and is contrary to the facts and the law. 5. (d) A perusal of the material record would show that the lis arose under the provisions of the Land Acquisition Act. Certain lands in Kotgir and Yadgarpur villages were acquired by the Government for restoration of the large tank of Yadgarpur. The decree holder is one of the claimants in OP. No. 42 of 1987 on the file of the Senior Civil Court at Bodhan. Certain lands in Kotgir and Yadgarpur villages were acquired by the Government for restoration of the large tank of Yadgarpur. The decree holder is one of the claimants in OP. No. 42 of 1987 on the file of the Senior Civil Court at Bodhan. The Land Acquisition Officer/judgment debtor by his award dated 14.08.1984 had awarded compensation @ Rs. 2,000/- per acre for dry land and @ Rs. 2,550/- per acre for dry cum wet lands. The decree holder sought reference to the civil Court. The reference was entertained as OP. No. 42 of 1987 and was disposed of by enhancing the compensation from Rs. 2,000/- to Rs. 16,000/- in case of dry lands and from Rs. 2,550/- to Rs. 17,000/- in case of dry lands converted into wet lands. The Land Acquisition Officer had preferred an appeal in As. No. 1989 of 1992. The said appeal was dismissed on 29.07.1998. Thus, the matter had attained finality in the year 1998 is not in dispute. Within one year from the date of the dismissal of the said appeal by this court, the earliest E.P. No. 60 of 1999 was filed in the year 1999. The said EP was dismissed on 26.08.2003 for non filing of the sale papers. Subsequently, within one year from the date of closure/dismissal of the said earlier execution petition, the next petition in E.P. No. 29 of 2003 was filed in the year 2003. This subsequent EP was also dismissed on 28.07.2006 for non payment of process. Then the decree holder had filed E.P. No. 20 of 2008 within two years from the date of the dismissal of the above said E.P. 29 of 2003. However, E.P. 20 of 2008 was also dismissed on 07.02.2011 for not showing any property in the schedule of the execution petition. Thereafter the present execution petition in E.P. No. 16 of 2011 was filed in the month of May 2011. In the circumstances, the judgment debtor contends that the present E.P. 16 of 2011 is barred by the law of limitation. However, the fact remains that immediately after the appeal preferred by the Land Acquisition Officer was dismissed on 29.07.1998, the decree holder had filed E.P. No. 60 of 1999 within one year from the date of dismissal of the said appeal. The said EP was dismissed in August 2003. However, the fact remains that immediately after the appeal preferred by the Land Acquisition Officer was dismissed on 29.07.1998, the decree holder had filed E.P. No. 60 of 1999 within one year from the date of dismissal of the said appeal. The said EP was dismissed in August 2003. Subsequently, within one year from the dismissal of E.P. 60 of 1999, the second E.P. 29 of 2003 was filed and the same was dismissed on 28.07.2006. Within two years from the said date, E.P. 20 of 2008 was filed and the same was closed on 07.02.2011 for not showing the schedule of property. Immediately thereafter the present E.P. 16 of 2011 was filed in May 2011. Therefore, it is evident that the EPs are being filed in succession i.e., one after the other and within the time allowed under law from the closure/dismissal of the previous execution petition. Therefore, the technical plea of limitation raised by the judgment debtor in defending the justifiable execution petition filed by the decree holder, whose land is acquired by the Government, thus appears to be hollow and unsustainable. A welfare State should not indulge in frivolous litigation and ought not to have raised the technical plea of limitation in defending the rightful claim of the decree holder. It is for the State to persuade the decree holder whose land was acquired and pay the compensation lawfully due to him. Further, it is to be seen that if an execution petition is dismissed for statistical purpose there being no adjudication of the rights of the parties on merits or there being no disposal of the contentions of the parties conclusively, such an order is not a final order and must be deemed to be an order passed for statistical purposes as held in the decision in Chidambaram Chettiar v. Periyasamy Chettiar AIR 1978 MADRAS 371. As per the ratio in the above decision, if an execution petition stands dismissed for statistical purposes without there being any adjudication of the rights of the parties on merits conclusively, such a dismissal shall be taken as a dismissal for statistical purpose only and in such a case, a fresh application must be deemed to be one for revival or continuation of the former application for execution. Further, as observed by the court of execution, part payments are being made by the judgment debtor from time to time and the last part payment was made in the year 2004 towards part of the decree debt. In the light of the facts and the legal position obtaining, the contention of the judgment debtor/State that the execution petition is barred by the law of limitation is devoid of merit and such a unholy contention cannot be allowed to be raised by the State to defend a justifiable claim of the decree holder. Viewed thus, this court finds that there is no merit in the contentions of the judgment debtor/revision petitioner. Therefore, this Court holds that the order impugned is sustainable both under facts and in law. The points are accordingly answered against the revision petitioner. 6. In the result, the Civil Revision Petition is dismissed. There shall be no order as to costs. Miscellaneous petitions pending, if any, in this revision shall stand closed. Petition dismissed