Bimal Kumar &
Another Vs. Shakuntala Debi & Others
[Civil Appeal Nos.
2524 of 2012 arising out of S.L.P. (Civil) No. 25038 of 2009]
J U D G M E N T
Dipak Misra, J.
1.
Leave
granted.
2.
In
this appeal, the assail is to the order dated 19.9.2009 passed by the learned
single Judge of Jharkhand High Court at Ranchi in C.R. No. 53 of 2007 by which he
has dislodged the order dated 10.7.2006 passed by the learned Sub-Judge (I), Ranchi,
whereby he had dismissed the Execution Case No. 8 of 2004 filed by the
respondents as being barred by limitation. -
3.
Filtering
the unnecessary details, the facts which are requisite to be frescoed for the purpose
of disposal of the present appeal are that one Kanilal Kasera filed a Partition
Suit No. 131 of 1962 against his father, Nanak Kasera, and other brothers. The suit
was compromised leaving aside Kishori Lal Kasera, the father of the present
appellants, and a joint petition of compromise between the plaintiff and the defendant
Nos. 1, 2, 4 to 9 and 11 to 18 was filed. It is worth noting that Kishori Lal Kasera
had appeared in the suit and filed the written statement but thereafter chose
not to contest.
4.
The
petition of compromise contained that the defendant Nos. 1, 9, 11 and 12 had
relinquished and given up all their interests in item Nos. 3 and 8 of the suit schedule
of property, being Holding No. 285 of new holding No. 509A of Ward No. II situated
on portion of Municipal Survey Plot No. 621 and Holding No. 431 of Ward No. 1 3
situated on Municipal Survey Plot No. 902, and further declared that they had
no claim or concern with any other properties involved in the suit; that the business,
namely, "SEVEN BROTHERS STEEL FURNITURE WORKS", item 5 of - the
schedule, belonged exclusively to the defendant No. 2,
Moti Lal Kasera, and neither
the plaintiff nor any of the other defendants either ever had or shall ever have
any claim or interest; and that one half of the house and premises comprised in
Municipal Holding No. 431, Ward No. 1, item 3 of the schedule, and half of
Holding No. 509 A of Ward II, situated on portion of M.S. Plot No. 631, item 2
of the schedule, shall belong to the defendant No. 2 with all the liabilities
and outstanding dues and the plaintiff and the other defendants shall have no liabilities
or interest in the said properties; and that the business carried on under the name
of `Chotanagpur Tin Works', item 6A of the schedule, was the sole separate business
of the defendant No. 5, Prakash Kumar Kasera, and the plaintiff or the other defendants
had no claim on the said property.
5.
The
application further contained that the partition of the house and premises comprised
in Holding No. 431 of Ward I, item 3 of the schedule, marked in green colour in
the exhibit, shall belong exclusively to the defendant no. 4, Mohan Lal Kasera,
and neither the plaintiff nor the other defendants shall have any claim or
interest; that the - business of iron shop at Bazaar Tan Ranchi, item 6 (c) of the
schedule, was the separate and exclusive business of the defendant No. 6,
Surendra Lal Kasera, and none others had any claim or interest and the portion of
the building and premises comprised in Municipal Holding No. 431 of Ward No. I,
item 3 of the schedule, marked in yellow colour,
Shall also belong to
the defendant No. 6 and no one else had any claim or interest; that the portion
of the building and premises comprised in Municipal Holding No. 431 of Ward No.
I, item 3 of the schedule, marked in blue colour, and one-half of the shop
premises comprised in Holding No. 509 A over portion of M.S. Plot No. 621 being
item No. 2 of the schedule to the plaint shall exclusively belong to the plaintiff
and he shall have absolute right over the same.
6.
That
apart, the plaintiff had agreed to pay up all outstanding dues of Bindrilal Agarwalla
against the defendant No. 1 and none of the defendants shall be liable for the
same.
7.
It
was also agreed upon that the House situated on Holding 6 Ward II of the Ranchi
Municipality being comprised of Khata No. 71 plot No. 72 area 61 decimal and - plot
No. 79 area 7= decimal total area measuring 14 decimal, being item No. 4 of the
schedule and the house and premises comprised of Holding No. 180 Ward III being
survey plot No. 92 area 0.30 Karies and Municipal Survey Plot No. 92 area 0.063
Karies total area 0.093 Karies of Hajamtolio, Ranchi being item No. 5 were separate
and exclusive properties of Smt. Rama Devi and shall belong exclusively to the defendant
No. 7, Srimati Rama Devi, the widow of Hira Lal Kasera, and no one else shall have
any claim or concern in the said property; that the shop premises being holding
No. 509 B of
Ward II of Ranchi Municipality
situated on portion of M.S. Plot No. 621 being item No. 1 of the schedule and the
house premises comprised of Holding No. 133(g) of Ward II being item No. 8 and
the properties comprised Holding No. 145 A of Ward No. I measuring 6= decimals
being plot No. 268 of Khata No. 34 of Village Konka, being item No. 9 of the
schedule belonged to the defendant No. 8, Sreemati Munitri Debi, wife of Prakash
Lal Kasera, the defendant No. 5, and none had any claim or interest; that the
house and the premises situated at Madhukam, Ranchi comprised in Holding No.
318 of - Ward I being item No. 10 of the schedule was the property of the
defendant No. 13, Shreemati Deojani Debi, wife of Moti Lal Kasera, the
defendant No. 2.
8.
It
was stipulated that the business and properties mentioned in item Nos. 6(b) and
7 were erroneously included in the suit.
9.
Be
it noted, in Clause (K) of the petition of compromise, it was clearly stated as
follows: - "k) That the parties are in separate and exclusive possession of
the properties respectively belonging to them and have obtained separate and exclusive
possession of 7 the properties allotted to their respective shares."
10.
The
learned trial Judge being satisfied accepted the petition of compromise and
passed a compromise decree on 3.4.1964 treating Kishori Lal Kasera ex parte.
11.
When
the matter stood thus, the legal representatives of Kishori Lal Kasera, the present
appellants, initiated a fresh partition suit No. 49 of 1973 on the ground that the
earlier decree was obtained by fraud. In the said suit, they claimed 1/11th
share of the property for themselves which - was involved in the earlier suit
being P.S. No. 131 of 1962.
The said suit was dismissed
on 27th August, 1994. Being dissatisfied with the said decision, Kishori Lal Kasera
preferred Title Appeal No. 109 of 1994 which was dismissed for want of
prosecution on 6.1.2004. At this juncture, the respondents herein filed execution
case No. 8 of 2004 seeking execution of the decree passed in P.S. No. 131 of 1962.
Be it noted, in the meantime, Kishori Lal Kasera had breathed his last and, therefore,
the execution was levied against the legal heirs, the appellants herein.
12.
An
objection was raised by the appellants that the execution proceeding was barred
by limitation and hence, deserved to be dismissed. The learned Sub-Judge dismissed
the execution proceedings on the ground that it was absolutely barred by
limitation.
13.
Aggrieved
by the said order, the respondents preferred C.R. No. 53 of 2007 under Section
115 of the Code of Civil Procedure (for short `the CPC') and the learned single
Judge allowed the said Revision on the ground that the execution case preferred
by the revisionists was not barred by limitation. For the said purpose, the
learned single Judge - placed reliance on the decision in Bharti Devi v. Fagu Mahto1.
The legal substantiality of the said order is the subject-matter of challenge
in this appeal.
14.
We
have heard Mr. Amboj Kumar Sinha, learned counsel for the appellants, and Mr.
S.S. Shamshery, learned counsel for the respondents. 1 2009 (3) JLJR 90 : AIR
2010 Jhar 10
15.
The
two seminal and spinal issues that had emanated before the executing court and
the High Court and have also spiralled to this Court are whether the decree
passed by the court of first instance on the basis of compromise had become enforceable
or it had the status of a preliminary decree requiring completion of a final decree
proceeding to make it executable and whether the execution proceeding was
untenable being hit by the law of limitation.
16.
We
shall advert to the first issue first. On a perusal of the tenor of the entire
compromise application, we are of the considered view that the parties to the compromise
settled the entire controversy. The defendant No. 3 who was the predecessor-in-interest
of the present appellants was not - allotted any share.
As is perceptible
from the terms of the compromise which formed a part of the decree, the parties
had conceded that they were in separate and exclusive possession of the properties
respectively belonging to them and further had obtained separate and exclusive
possession of the properties allotted to their respective shares. Thus, their respective
shares and exclusive possession were admitted on the basis of the said
compromise petition and a decree had been drawn up.
The Court had taken
note of the contents of the compromise wherein it had been prayed that the decree
be passed in accordance with the terms of the compromise. It is clearly evincible
that the Court had proceeded on the basis that it was finally disposing of the suit
in accordance with the terms set out in the compromise petition. The factum of
exclusive possession had also been recorded in the application of compromise. It
had been clearly stated that parties have been put in separate possession of
the various immovable properties.
17.
Quite
apart from the above, in the counter affidavit filed by the respondents, it is
admitted that possession had remained with the parties as per the allotment. It
is - profitable to reproduce the said portion of the counter affidavit:- "It
is pertinent to mention here that the parties who were allotted the share as
per the decree were stated to be in possession of their share and it was written
in the judgment that no preliminary, final decree or execution was required to be
filed. Though Kishori Lal Kasera had full knowledge of the compromise decree but
he did not challenge the decree within the period of limitation therefore the compromise
decree became final and absolute against all the parties, including Kishori Lal
Kasera."
18.
Despite
the aforesaid, a contention has been advanced by the learned counsel for the
respondents that in a suit for partition, drawing up of a final decree is imperative.
In this context, we may usefully refer to the decision in Rachakonda Venkat Rao
And Others v. R. Satya Bai (D) by L.R. And Another2 wherein it has been stated as
follows:- "The compromise application does not contain any clause regarding
future course of action which gives a clear indication that nothing was left for
future on the question of partition of the joint family properties. The curtain
had been finally drawn."
After so stating, the
Bench proceeded to observe as follows:- "The decree as a matter of fact
leaves nothing for future. As noticed earlier in a preliminary decree normally the
court declares the shares of the parties and specifies the properties to be partitioned
in the event of there being a dispute about the properties to be partitioned. After
declaring the shares of the parties and the properties to be partitioned, the Court
appoints a Commissioner to suggest mode of partition in terms of O. XXVI, R.
13, C.P.C. A 2 AIR 2003 SC 3322 : 2003 7 SCC 452 12 perusal of Order XXVI, R.
13 C.P.C. shows that it comes into operation after a preliminary decree for partition
has been passed. In the present case, there was no preliminary decree for partition
and, therefore, R. 13 of O. XXVI does not come into operation.
If the plaintiffs considered
the decree dated 13th July, 1978 as a preliminary decree, why did they wait to move
the application for final decree proceedings for 13 years? The only answer is that
the plaintiffs knew and they always believed that the 1978 decree was a final decree
for partition and it was only passage of time and change in value of the properties
which was not up to their expectations that drove plaintiffs to move such an
application."
19.
In
Muzaffar Husain v. Sharafat Hussain3, it has been held as follows:- "We
think the decree passed by the civil Court should be treated as a final order
for effecting a partition. It is true that the decree was passed on the basis of
a compromise filed by - the parties, but the fact remains that it was passed in
a partition suit, and had the effect of allotting a specific portion of the
property to the plaintiff as his share in the property. The conclusion at which
we have arrived is supported by a decision of the Madras High Court in Thiruvengadathamiah
v. Mungiah4" 3 AIR 1933 Oudh 562 4
20.
In
Raghubir Sahu v. Ajodhya Sahu5, the Division Bench of Patna High Court had
ruled thus: - "In the present case, the decree was passed on compromise. It
was admitted that by the compromise, the properties allotted to the share of each
party were clearly specified and schedules of properties allotted to each were appended
to the compromise petition. Therefore, no further inquiry was at all necessary.
In such circumstances, the decree did not merely declare the rights of the
several parties interested in the properties but also allotted the properties according
to the respective shares of each party. Therefore, it was not a preliminary decree
but it was the final decree in the suit."
21.
In
Renu Devi v. Mahendra Singh and others6, the effect of a compromise decree and allotment
of shares in pursuance of the said decree was dealt with. The two- Judge Bench
referred to the decisions in Raghubir Sahu v. Ajodhya Sahu (supra) and Muzaffar
Husain (supra) and - (1912) ILR 35 Mad 26 5 AIR 1945 Pat 482 6 AIR 2003 SC 1608
opined that the law had been correctly stated in the said authorities.
22.
In
the said case, after referring to CPC by Mulla, this Court, while drawing a distinction
between the preliminary and the final decree, has stated that a preliminary decree
declares the rights or shares of the parties to the partition. Once the shares have
been declared and a further inquiry still remains to be done for actually partitioning
the property and placing the parties in separate possession of the divided property,
then such inquiry shall be held and pursuant to the result of further inquiry,
a final decree shall be passed. A preliminary decree is one which declares the rights
and liabilities of the parties leaving the actual result to be worked out in
further proceedings.
Then, as a result of the
further inquiries conducted pursuant to the preliminary decree, the rights of the
parties are finally determined and a decree is passed in accordance with such determination,
which is the final decree. Thus, fundamentally, the distinction between preliminary
and final decree is that: a preliminary decree merely declares the rights and
shares of the parties and leaves room for some - further inquiry to be held and
conducted pursuant to the directions made in the preliminary decree which inquiry
having been conducted and the rights of the parties finally determined a decree
incorporating such determination needs to be drawn up which is the final
decree.
23.
Applying
the principles laid down in the aforesaid authorities, it is graphically clear
that in the case at hand, the parties entered into a compromise and clearly
admitted that they were in separate and exclusive possession of the properties
and the same had already been allotted to them. It was also admitted that they were
in possession of their respective shares and, therefore, no final decree or execution
was required to be filed.
It is demonstrable
that the compromise application does not contain any clause regarding the future
course of action. The parties were absolutely conscious and rightly so, that their
rights had been fructified and their possession had been exclusively determined.
They were well aware that the decree was final in nature as their shares were allotted
and nothing remained to be done by metes and bounds. Their rights had attained finality
and no further enquiry from any spectrum - was required to be carried out. The
whole thing had been embodied in the decree passed on the foundation of compromise.
24.
It
is to be borne in mind that the term `compromise' essentially means settlement of
differences by mutual consent. In such process, the adversarial claims come to rest.
The cavil between the parties is given a decent burial. A compromise which is
arrived at by the parties puts an end to the litigative battle. Sometimes the
parties feel that it is an unfortunate bitter struggle and allow good sense to prevail
to resolve the dispute. In certain cases, by intervention of well-wishers, the conciliatory
process commences and eventually, by consensus and concurrence, rights get
concretised.
A reciprocal
settlement with a clear mind is regarded as noble. It signifies magnificent and
majestic facets of the human mind. The exalted state of affairs brings in quintessence
of sublime solemnity and social stability. In the present case, as the factual matrix
would reveal, a decree came to be passed on the bedrock of a compromise in
entirety from all angles leaving nothing to be done in the future. The curtains
were really drawn and - the Court gave the stamp of approval to the same. Thus,
the inescapable conclusion is that the compromise decree dated 03.04.1964 was a
final decree.
25.
Presently,
we shall dwell upon the issue whether the execution levied by the respondents was
barred by limitation or not. The executing Court, by its order dated 10.07.2006,
accepted the plea of the present appellants and came to hold that the execution
petition filed by the decree holder was hopelessly barred by limitation. In the
Civil Revision, the learned Single Judge overturned the decision on several counts;
i.
that
no steps were taken and no objection was raised by the 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 the 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 the second
suit became final, the execution case was filed by the petitioner 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.
26.
Apart
from the aforesaid reasons, the learned Single Judge has opined that after the execution
case was admitted by the predecessor of the learned Sub-Judge presumably after
condoning the delay, the successor should not have dismissed it on the ground
of limitation. He placed 19 reliance on the decision rendered in Bharti Devi (supra)
and buttressed the reasoning that there was no delay in levying of the execution
proceeding. The learned single Judge further took note of the pending Misc.
Appeal No. 369 of 2008 preferred by the present appellants to reinforce the conclusion.
-
27.
It
is well settled in law that a preliminary decree declares the rights and liabilities,
but in a given case, a decree may be both preliminary and final and that apart,
a decree may be partly preliminary and partly final. It has been so held in Rachakonda
Venkat Rao v. R. Satya Bai7. It is worth noting that what is executable is a final
decree and not a preliminary decree unless and until the final decree is a part
of the preliminary decree. That apart, a final decree proceeding may be initiated
at any point of time. It has been so enunciated in Hasham Abbas Sayyad v. Usman
Abbas Sayyad and others8. 7 (2003) 7 SCC 452 8
28.
In
Bikoba Deora Gaikwad and others v. Hirabai Marutirao Ghorgare and others9, a two-Judge
Bench of this Court has held that only when a suit is completely disposed of, thereby
a final decree would come into being. In the said case, it has also been laid down
that an application for taking steps towards passing a final decree is not an execution
application and further, for the purposes of construing the nature of the
decree, one has to look to - the terms thereof rather than speculate upon the court's
intention.
29.
Regard
being had to the aforesaid principles and having opined that the decree passed on
the basis of a compromise in the case at hand is the final decree, it is to be
addressed whether the execution is barred by limitation. Article 136 of the
Limitation Act (for brevity `the Act') reads as follows: - "Description of
Period of Time from which period begins application to run (2007) 2 SCC 355 9 (2008)
8 SCC 198 Limitation 136.
For the Twelve When the
decree or order execution of any years becomes enforceable or where decree (other
the decree or any subsequent than a decree order directs any payment of granting
a money or the delivery of any mandatory property to be made at a injunction) or
certain date or at recurring order of any periods, when default in civil court.
making the payment or delivery in respect of which execution is sought, takes place;
Provided that an application for the enforcement or execution of a decree
granting a perpetual injunction shall not be subject to any period of limitation."
30.
On
a perusal of the said Article, it is quite vivid that an application for
execution of a decree (other than a decree - granting a mandatory injunction)
or order of any civil court is to be filed within a period of twelve years. In Dr.
Chiranji Lal (D) by LRs. v. Hari Das (D) By LRs.,10 the question arose whether a
final decree becomes enforceable only when it is engrossed on the stamp paper. The
three- Judge Bench dealing with the controversy has opined that 10 (2005) 10
SCC 746 22 Article 136 of the Limitation Act presupposes two conditions for the
execution of the decree; firstly, the judgment has to be converted into a
decree and secondly, the decree should be enforceable.
The submission that
the period of limitation begins to run from the date when the decree becomes enforceable,
i.e., when the decree is engrossed on the stamp paper, is unacceptable. The Bench,
while elaborating the said facet, proceeded to lay down as under: - "24. A
decree in a suit for partition declares the rights of the parties in the
immovable properties and divides the shares by metes and bounds. Since a decree
in a suit for partition creates rights and liabilities of the parties with
respect to the immovable properties, it is considered as an instrument liable
for the payment of stamp duty under the Indian Stamp Act.
The object of the
Stamp Act being securing the revenue for the State, the scheme of the Stamp Act
provides that a decree of partition not duly stamped can be impounded - and
once the requisite stamp duty along with penalty, if any, is paid the decree
can be acted upon. 25. The engrossment of the final decree in a suit for
partition would relate back to the date of the decree. The beginning of the period
of limitation for executing such a decree cannot be made to depend upon date of
the engrossment of such a decree on the stamp paper. The date of furnishing of
stamp paper is an uncertain act, within the domain, purview and control of a
party. No date or period is fixed for furnishing stamp papers.
No rule has been
shown to us requiring the court to call upon or give any time for furnishing of
stamp paper. A party by his own act of not furnishing stamp paper cannot stop
the running of period of limitation. None can take advantage of his own wrong.
The proposition that period of limitation would remain suspended till stamp
paper is furnished and decree engrossed thereupon and 23 only thereafter the
period of twelve years will begin to run would lead to absurdity.
In Yeshwant Deorao
Deshmukh v. Walchand Ramchand Kothari [1950 SCR 852 : AIR 1951 SC 16] it was
said that the payment of court fee on the amount found due was entirely in the
power of the decree holder and there was nothing to prevent him from paying it
then and there; it was a decree capable of execution from the very date it was passed.
26. Rules of limitation are meant to see that parties do not resort to dilatory
tactics, but seek their remedy promptly.
As abovenoted, there
is no statutory provision prescribing a time limit for furnishing of the stamp
paper for engrossing the decree or time limit for engrossment of the decree on
stamp paper and there is no statutory obligation on the Court - passing the
decree to direct the parties to furnish the stamp paper for engrossing the
decree. In the present case the Court has not passed an order directing the
parties to furnish the stamp papers for the purpose of engrossing the decree.
Merely because there
is no direction by the Court to furnish the stamp papers for engrossing of the
decree or there is no time limit fixed by law, does not mean that the party can
furnish stamp papers at its sweet will and claim that the period of limitation
provided under Article 136 of the Act would start only thereafter as and when
the decree is engrossed thereupon. The starting of period of limitation for
execution of a partition decree cannot be made contingent upon the engrossment
of the decree on the stamp paper."
31.
In
Ram Bachan Rai and others v. Ram Udar Rai and others11, a contention was advanced
to the effect that as the cost for enforcement of decree was not quantified,
the period of limitation could not have commenced from the 11 (2006) 9 SCC 446 24
date of judgment and decree. The Court referred to the decision in Dr. Chiranji
Lal (supra) and, after referring to paragraphs 24 and 25 of the said decision, expressed
the view in unequivocal terms that the inevitable conclusion was that the suit
was barred by limitation. -
32.
In
the present case, the learned counsel for the respondents, in support of the order
passed in Civil Revision, has canvassed that when a suit was filed for declaring
the earlier compromise decree to have been obtained by fraud and the same
remained pending for more than 21 years, the period of limitation commenced
only after the suit and the appeal arising therefrom were dismissed since only on
the conclusion of the said proceeding, the decree became enforceable and
further, the time consumed in the said proceeding is to be excluded for
computation of the period of limitation under Article 136 of the Limitation Act.
We have already held that the decree was a final decree.
Therefore, it was immediately
executable. The question, thus, would be `was the time arrested?' On a query
being made, it was fairly conceded at the Bar that at no point of time, there
was any order by any court directing stay of operation of the judgment and
decree passed in P.S. No. 131 of 1962. The question that emanates for consideration
is whether the period during which the suit and appeal preferred by the
appellants remained pending is to be excluded for the purpose of limitation.
In this context, - we
may usefully refer to the dictum in Ratan Singh v. Vijay Singh and Ors. wherein,
while dwelling upon the concept of enforceability of a decree and the effect of
an order of stay passed by the appellate court, the Bench stated thus: "8.
When is a decree becoming enforceable? Normally a decree or order becomes enforceable
from its date. But cases are not unknown when the decree becomes enforceable on
some future date or on the happening of certain specified events.
The expression "enforceable"
has been used to cover such decrees or orders also which become enforceable
subsequently. 12 2000 (8) SCALE 214 26 9. Filing of an appeal would not affect the
enforceability of the decree, unless the appellate court stays its operation. But
if the appeal results in a decree that would supersede the decree passed by the
lower court, it is the appellate court decree which becomes enforceable. When
the appellate order does not amount to a decree there would be no supersession
and hence the lower court decree continues to be enforceable."
33.
In
Ram Bachan Rai (supra), the two-Judge Bench took note of the fact that an application
under Order IX Rule 13 for setting aside the ex parte decree was dismissed which
was assailed in a miscellaneous appeal and - ultimately in a civil revision. At
no stage, stay was granted by any court. The decree holders therein filed an application
for execution after 12 years. Regard being had to the same, it was held that
the execution proceeding was barred by limitation.
34.
In
this context, it is fruitful to refer to the pronouncement in Manohar v. Jaipalsing13.
In the said case, it has been held as follows: 13 AIR 2008 SC 429 "15. The
order of purported stay passed by this Court in terms of its Order dated
21.3.1988 is also of no assistance to the plaintiff decree- holder. The Special
Leave Petition was filed only against the Order dated 1.7.1985 refusing to review
its judgment and decree dated 2.9.1983.
The stay of operation
of the Order dated 1.7.1985 for all intent and purport was meaningless as the review
petition already stood dismissed. 16. Further direction of this Court that computation
of mesne profit would go on and the same would be deposited by the appellant is
of no consequence inasmuch as by reason thereof neither proceeding was stayed
nor had the operation of the judgment and decree been stayed. In fact, it was an
order passed in favour of the decree holder. The said direction did not come in
his way to execute the decree for possession." -
35.
In
the case at hand, the compromise decree had the status of a final decree. The latter
suit filed by the appellants was for partition and declaring the ex parte compromise
decree as null and void. As has already been stated, there was no stay of the earlier
judgment or any proceedings emanating therefrom. In the absence of any interdiction
from any court, the decree-holder was entitled to execute the decree. It needs
no special emphasis to state that there was no impediment or disability in the
way of the respondents to execute the decree but the same was not done.
Therefore, the irresistible
conclusion is that the initiation of execution proceedings was indubitably barred
by limitation. Thus analyzed, the reasons ascribed by the learned single Judge are
absolutely unsustainable. The period of limitation stipulated under Article 136
of the Act could not have been condoned as has been so presumed by the learned single
Judge. The reliance placed on the decision in Bharti Devi (supra) is totally misconceived
inasmuch as in the said case, the execution proceeding was initiated for
permanent injunction. No exception can be - taken to the same and, therefore, reliance
placed on the said decision is misconceived.
36.
Ex
consequenti, the appeal is allowed, the order passed by the High Court in Civil
Revision is set aside and that of the executing court is restored. The parties
shall bear their respective costs.
.....................................J.
[Dalveer Bhandari]
.....................................J.
[Dipak Misra]
New
Delhi;
February
27, 2012.
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