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2019 DIGILAW 1865 (HP)

Rajesh Vats & Another v. Chaman Lal

2019-12-05

AJAY MOHAN GOEL

body2019
JUDGMENT Ajay Mohan Goel, J. - By way of this petition, petitioners have challenged the order passed by the learned Executing Court dated 27.03.2019, vide which the Execution Petition which was filed by the present petitioners for execution of the decree so passed in favour of predecessor-in-interest of the present petitioners dated 30.08.1978, was dismissed as being time barred. 2. Brief facts necessary for the adjudication of the present petition are that a suit filed by one Shri Mangti Ram predecessor-in-interest of the present petitioners, was decreed on 30.08.1978. The first appeal filed against the same was dismissed by the learned First Appellate Court on 12.09.1980 and the Regular Second Appeal was dismissed by this Court on 28.12.1990. 3. For the purpose of the execution of the said judgment and decree dated 30.08.1978 as affirmed by the learned Appellate Court as well as this Court, an Execution Petition was filed by the present petitioners in the year 2007. The same has been dismissed by the learned Executing Court as being time barred in the following terms:- "15. the applicants claim that the period of limitation to file the present execution commences from the orders dated 23.09.2002 and 24.04.2008 passed by Hon''ble High Court of Himachal Pradesh in revision petitions No.81/2002 and 164/2007 respectively. Undisputedly, both these orders were passed with respect to the proceedings of the previous execution. 16. Article 136 of the Schedule appended to the Limitation Act, 1963 provides that the period of limitation of 12 years, for the execution of any decree (other than a decree for mandatory injunction), commences when the decree becomes enforceable. 17. In the present case, the civil suit was decreed on 30.08.1978 and the regular second appeal was dismissed by Hon''ble High Court of Himachal Pradesh on 28.11.1990. Therefore, the decree became enforceable from 28.11.1990. There does not seem to be any basis for the commencement of the period of limitation from 23.09.2002 or 24.04.2008, especially, when these orders did not relate to the enforceability of the actual decree. The reliance of the applicants on case titled as Hamed Johran Versus Abdul Salen, (2001) AIR SC 3404 seems to be misplaced. 18. Therefore, this Court has no hesitation to hold that the present execution is hopelessly time barred. Accordingly, this execution is dismissed. The file, after due completion, be consigned to record room". 4. The reliance of the applicants on case titled as Hamed Johran Versus Abdul Salen, (2001) AIR SC 3404 seems to be misplaced. 18. Therefore, this Court has no hesitation to hold that the present execution is hopelessly time barred. Accordingly, this execution is dismissed. The file, after due completion, be consigned to record room". 4. Leaned counsel appearing for the petitioners has argued that the order which has been passed by the learned Executing Court is perverse as the learned Executing Court has erred in not appreciating that there is a principle of merger and as the last order in the proceedings stood passed by this Court in a Civil Revision in the year 2007, therefore, the Execution Petition was within limitation. For this purpose, he has relied upon the judgment of Hon''ble Supreme Court in titled as Chandi Prasad and Others versus Jagdish Prasad and others, (2004) 8 SCC 724 . 5. On the other hand, learned Senior Counsel appearing for the contesting respondents has argued that there is no perversity with the order which has been passed by the learned Executing Court as admittedly, the Execution Petition which was filed by the present petitioners was time barred as is evident from the fact that alongwith the Execution Petition which was filed by them, they filed an application under Section 5 of the Limitation Act, praying for condonation of delay in filing the Execution Petition without appreciating that in law there can be no condonation of delay with regard to execution of delay of a decree. In order to substantiate his contention, learned Senior Counsel has relied upon the judgment of this Court in titled as Capt. Padam Singh Versus Ms. Rajni Saarin and others,2015 1 HimLR 298 (DB). 6. I have heard learned counsel for the parties and have also gone through the impugned order as well as record of the case. 7. It is a matter of record that the decree was passed in favour of the predecessor-in-interest of the present petitioners was passed by the learned trial Court on 30.08.1978. The first appeal filed against the said judgment and decree was dismissed on 12.09.1980 and the second appeal was dismissed on 28.12.1990. 8. In my considered view, the limitation for the purpose of execution of the decree in issue started w.e.f. 30.08.1978 itself. The first appeal filed against the said judgment and decree was dismissed on 12.09.1980 and the second appeal was dismissed on 28.12.1990. 8. In my considered view, the limitation for the purpose of execution of the decree in issue started w.e.f. 30.08.1978 itself. This, I say for the reason that filing of appeal or second appeal would not condone the delay or restrict the period of limitation for the purpose of filing an Execution Petition until and unless the execution of the judgment and decree under challenge stood expressly stayed by the Appellate Court. 9. Learned counsel for the petitioners has not appended with the petition any document to demonstrate that execution of the judgment and decree passed by the learned trial Court were stayed by the learned First Appellate Court or this Court in the Regular Second Appeal. 10. Be that as it may, even as from 28.12.1990 i.e. the date when the Regular Second Appeal was dismissed by this Court, admittedly, Execution Petition was not filed by the present petitioners within the period of limitation of 12 years. Execution Petition filed by some other persons and subsequent proceedings resultant out of those Execution Proceedings, in my considered view will not determine the point of limitation viz-a-viz the present petitioners. They had their own independent right to had the decree executed and as they did not approach the Executing Court within the period of limitation, the order which has been passed by the learned Executing Court, dismissing the Execution Petition cannot be faulted with. 11. The judgment being relied upon by the learned counsel for the petitioner i.e. titled as Chandi Prasad and Others versus Jagdish Prasad and others, (2004) 8 SCC 724 is also of no assistance to the petitioners in the present case because the principle of merger of judgment cannot be applied in the manner in which the petitioners wants the same to be applied. Taking the case of the petitioners at the best, this principle of merger can be applied viz-a-viz the judgment and decree passed by the learned trial Court with the judgment passed by the learned First Appellate Court and this Court subject to stay of execution of decree. Taking the case of the petitioners at the best, this principle of merger can be applied viz-a-viz the judgment and decree passed by the learned trial Court with the judgment passed by the learned First Appellate Court and this Court subject to stay of execution of decree. This principle cannot be stretched to the extent that the principle of merger has to be applied even with regard to those proceedings which had terminated on account of some other Execution Petitions having been filed by persons other than the present petitioners. 12. Contention of the petitioners that Execution Petition filed by them was within limitation is otherwise also belied from the fact that alongwith the Execution Petition which was filed by them, they had filed an application for condonation of delay under Section 5 of the Limitation Act. That being so, the petitioners cannot be permitted to blow hot and cold in the same breath. The factum of filing an application under Section 5 of the Limitation Act for condonation of delay in fact was an admission on the part of the petitioners that the Execution Petition filed by them was barred by limitation. 13. Hon''ble Division Bench of this Court in Court in titled as Capt. Padam Singh Versus Ms. Rajni Saarin and others,2015 1 HimLR 298 (DB) relying upon the judgments of Hon''ble Supreme Court, has reiterated the law that application under Section 5 of the Limitation Act is not maintainable in proceedings arising under Order 21 of the Civil Procedure Code. 14. Therefore, as this Court concurs with the findings returned by the learned Executing Court that the Execution Petition was not filed by the petitioners within the period of limitation, this Court does not finds any infirmity with the order which stands impugned by way of present petition, which accordingly stands dismissed. Pending miscellaneous applications, if any, also stand dismissed.