JUDGMENT
V.M. Jain, J.
1. This petition under Article 227 of the Constitution of India has been filed by Baba Balbir Singh, petitioner (Judgment Debtor) against the order dated 17.1.2003 passed by the executing Court dismissing the objections dated 8.11.2002 filed by the petitioner/judgment debtor and ordering the issuance of warrants of possession in respect of suit property.
2. The facts, which are relevant for the decision of the present petition, are that the suit for possession filed by the plaintiffs was decreed by the Trial Court on 11.11.1969. The appeal filed by the defendants was dismissed by learned Additional District Judge, in November, 1975. The Regular Second Appeal was dismissed by the Court on 18.1.1985, upholding the decree for possession passed in favour of the plaintiffs. Thereafter, the plaintiffs-decree holders filed execution petition before the trial Court on 2.1.1997, seeking the execution of the decree for possession. Notice in the said execution petition given to the judgment debtor (Baba Balbir Singh), who filed objection petition to the execution petition, alleging therein that the present execution petition was barred by limitation, in as much as the period of limitation was 12 years and the present execution petition filed by the decree holders was barred by limitation. The decree holders filed reply to the objection petition. After hearing both sides the learned executing Court found that the execution petition was within limitation. Resultantly, the objection petition dated 8.11.2002 filed by the objector was dismissed and the warrants of possession were ordered to be issued against the judgment debtors with Police help vide order dated 17.1.2003. Aggrieved against the same, Baba Balbir Singh, objector, filed the present petition under Article 227 of the Constitution of India in this Court.
3. On 21.2.2003, when the case came up for motion hearing before me, the learned counsel appearing for the petitioner prayed for a short date to study the question of law involved in the present Revision Petition i.e. the question of limitation for filing the execution petition. Accordingly, the case was adjourned to 25.2.2003 i.e. today.
4. I have heard the learned counsel for the petitioner and gone through the record carefully.
5. The learned counsel appearing for the objector/petitioner submitted before me that under Article 136 of the Limitation Act, 1963, the limitation was 12 years for the execution of any decree and the limitation would start from the date when the decree became enforceable. It was submitted that in the present case, the decree was passed by the Trial Court on 11.11.1969 and no stay of any kind was granted by the Appellate Courts and finally the Regular Second Appeal was decided by this Court on 18.1.1985 and as such the execution petition filed on 2.1.1997 was barred by limitation.
6. However, I find no force in these submissions of the learned counsel for the objector/petitioner. Article 136 of the Limitation Act reads under:-
Description
of suit
Period
of Limitation
Time
from which period begins to run
136
For the
execution of any decree (other than a decree granting
a mandatory injunction) or order of any civil court.
Twelve
years
[When]
the decree or order becomes enforceable or where the decree or any subsequent order
directs any payment of money or the delivery of any property to be made at a
certain date or at recurring periods, when default in 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.”
From a perusal of the above, it would be clear that limitation for execution of any decree or order of any Civil Court is 12 years from the date when the decree or order become enforceable. The question that comes up for consideration before me is as to when the decree passed by the Civil Court, in the present case, became enforceable. As referred to above, the suit was initially decreed by the Trial Court on 11.11.1969 and finally the decree was upheld by this Court in Regular Second Appeal, which was decided on 18.1.1985, bearing Regular Second Appeal No. 518 of 1976. In the case reported as 1985(11) Madras Law Journal 156, Palaniammal v. S. Preiasamy and Ors., it was held by the Madras High Court that the word “when the decree or order becomes enforceable” must necessarily mean that in a case where the decree has been subject matter of appeal, whether first appeal or second appeal, then the decree becomes enforceable only when the appellate decree is made. It was further held that whenever there is an appeal against the decree by a Trial Court, what is enforceable is not the decree of the Trial Court but the decree of the Appellate Court because the decree of the Trial Court gets merged with the decree of the Appellate Court, even wherein the appeal is dismissed. Reliance was placed on the law laid down by the Hon’ble Supreme Court, in the case reported as U.P. State v. Mohd Nooh, A.I.R. 1958 Supreme Court 242 and various other judgments of various High Courts. In A.I.R. 1978 Andhra Pradesh 342, Posani Ramachandraiah v. Daggupati Seshammal Division Bench of the Andhra Pradesh High Court had held that under Article 136 of the Limitation Act, the period of limitation can be reckoned from the date of the appellate decree even though there was no stay in the appeal. It was further held that if there is an appeal, the decree that can be enforced is that of the Appellate Court and the period of limitation has to be reckoned from the date of that decree. Similarly in A.I.R. 1979 Allahabad 23, Abdul Razzaq v. Izzat Ali, it was held by Allahabad High Court that the application for execution was based on the doctrine of merger. It was further held that where the original decree, on having been merged in the Appellate decree, the limitation shall be counted from the date of the Appellate decree. Reliance in this regard was placed on the law laid down by the Hon’ble Supreme Court, in the case of Collector of Customs v. East India Commercial of Company Ltd., A.I.R. 1963 Supreme Court 1124. Similarly, in A.I.R. 1976 Calcutta 122, Shyama Pada Choudhury v. Saha Choudhury & Co. and Ors., it was held by a Division Bench of the Calcutta High court that the decree of the Trial Court having merged in the decree of the Appellate Court, the starting point of limitation for application for execution of the decree is the date of the Appellate Court decree and not the date of the Trial Court decree. It was further held that it is the decree of the Appellate Court which alone can be enforced and that the decree cannot be said to have become enforceable at any time prior to the date on which it was passed. In this case as well, reliance was placed on the law laid down by the Hon’ble Supreme Court, in the case reported as State of U.P. v. Mohammad Nooh, A.I.R. 1958 Supreme Court 86 (supra).
7. In view of the law laid down by the Hon’ble Supreme Court and various High Courts, referred to above, in my opinion, it could not be said that the execution petition filed on 2.1.1997 was beyond the period of limitation, considering that the Appellate decree passed by this Court is dated 18.1.1985 and thus, the execution petition was filed within 12 years of the Appellate Court decree. In my opinion, the learned executing Court was perfectly justified in dismissing the objection petition and holding that the ‘ execution petition was within the period of limitation.
In view of the above, finding no merit in the present Revision Petition, the same is
hereby dismissed.