JUDGMENT
Mahinder, Narain, J.
(1) The only question which arises for consideration in this matter is, whether the ex parte decree for possession which was obtained by the respondent/decree-holder Charanjit Singh is executable or not. The ex parte decree was obtained by Charanjit Singh on 27.1.1973.
(2) The petitioner again whom the ex parte decree was passed, sought to have the -ex parte decree set aside from the Court which passed it. That Court refused to set aside the ex parte decree Against the order of refusal to set aside the ex parte decree, an appeal was filed. This appeal of the petitioner was dismissed on 22.1.1976.
(3) From the above facts, it is clear that the petitioner/Judgment debtor against whom the ex parte decree in a suit for possession, was passed, did not file any appeal against the ex parte decree. He only sought setting aside of the ex pane decree under Orders and Rules in which he had failed.
(4) It is not disputed that the decree-holder had not made any application for execution of the decree after his first application for execution was dismissed In default on 20.4.1979.
(5) Article 136 of the Limitation Act reads as under :
136.For the execution of any decree (other than a decree granting a mandatory injunction) or order of any civil Court, the period of limitation is twelve years, and the time from which period begins to run is 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.
(6) The period of twelve years for execution of a decree will run from the (late when the decree becomes enforceable. The decree is enforceable when there is no restraint upon it enforceability by an appellate Court. In the instant case, the appellate Court had not restrained the execution of the ex parte decree passed in favor of Charanjit Singh on 27-1-1973.
(7) Charanjit Singh filed a second execution application on 21.7.1986. The ex parte decree having been passed in favor of the decree-holder on 27.1.1973, the second execution application filed on 21.7.1986 was filed 13 years after the passing of the ex parte decree, which remained executable for 12 years from the date when Its was passed. The second execution application could relate to a decree which was executable. The decree dated 27.1.1973 could be executed during 12 years, only up to 26.1.1986. The second execution application filed on 21.7.1986 was, therefore, barred by time.
(8) Counsel for the decree-holder refers to a decision of the Full Bench of the Patna High Court, reported as AtR 1987 Patna 133 Jokhan Rai v. Baikunth Singh). The said judgment of the Full Bench postulates an appellate decree. In the Instant case, there Is no appellate decree at all. There is only a decree which was passed ex parte by the trial Court. That being the situation the question of merging of the original ex parte decree with the appellate order dose not arise, inasmuch as there was no appeal preferred against the ex parte decree. This case is, therefore, of no assistance to the decree-holder.
(9) Counsel for the decree-holder also relies upon a decision of the Madhya Pradesh High Court, reported as (Sumera v. Madanlal & Others). That case deals with the remedies available for setting aside of ex parte decrees, and it holds that where a person avails of the remedy of setting aside of ex parte decree, it is not open to him to prefer an appeal against the ex parte decree. This case also is of no help to the decree-holder on the question whether the second execution application Is within time.
(10) In this view of the matter inasmuch as the impugned order holds that the second execution application dated 21,7.1986 is within the period of limitation, the same cannot survive, and is hereby set aside.
(11) In the aforesaid circumstances. Civil Revision Petition Is allowed and the second execution application dated 21.7.1986 is dismissed, as the same has been filed beyond time postulated by Article 136 of the Limitation Act.
(12) No order as to costs. Petition allowed.