in a suit for specific performance of contract, decree is enforceable from the date of execution of the sale deed. The period of limitation has to be reckoned from the date of execution of the sale deed and not from the date of the decree.In the instant case, the trial court decreed the suit on 03.7.2000, and consequently executed the sale deed in favour of plaintiff-Decree holder No.1 on 07.5.2003. From 03.7.2000 to 07.5.2003, the decree passed in favour of the plaintiff is not enforceable or executable so far as delivery of the suit schedule property is concerned. For all practical and legal purposes, the decree was enforceable with effect from 08.5.2003. Therefore, respondent Nos.2 to 4 are entitled to file the E.P. for delivery of the property on or before 07.5.2015. Respondent Nos.2 to 4 have filed Execution Petition in the year 2013, but the same was numbered in the year 2014 as E.P. No.55 of 2014. The material placed before the court below clinchingly establishes that the E.P. was filed within the period of limitation. The executing Court has assigned reasons much less cogent and valid reasons while allowing the petitions. The findings recorded by the executing court are based on material available on record. I am fully endorsing the findings recorded by the executing court. There is no illegality, irregularity or impropriety in the orders passed by the executing court, which warrant interference of this court while exercising jurisdiction under Section 115 of CPC. Accordingly, the points are answered against the petitioners-Judgment debtors.
2017- AP. HIGH COURT http://judis.nic.in/Judis_Andhra/list_new2.asp?FileName=14108
HONOURABLE SRI JUSTICE T.SUNIL CHOWDARY
CIVIL REVISION PETITION Nos.2396 of 2015
05-06-2017
G.Subramanyam (died) represented by his L.Rs G.Sugunamma and others Revision Petitioners/Petitioners-J.Drs
B.Raghunath (died) represented by his L.Rs B.Revathi and others Respondents/Respondents-D.Hrs
Counsel for revision petitioners:Sri Ch.Venkat Raman
Counsel for respondents:Sri T.Janardhan Rao
<GIST:
>HEAD NOTE:
? CASES REFERRED:
1.(2005) 10 SCC 746
2.2015 (2) ALD 150
3.AIR 2000 SC 1760
THE HONBLE SRI JUSTICE T.SUNIL CHOWDARY
CIVIL REVISION PETITION Nos.2396, 2397 and 2642 of 2015
COMMON ORDER:
CRP No.2642 of 2015 is filed, under Section 115 of CPC,
challenging the order dated 06.3.2015 in EP No.55 of 2014 in
O.S.No.1067 of 1999 on the file of the Court of the I Additional
Junior Civil Judge, Tirupati, wherein and whereby the executing
court ordered delivery of E.P. schedule property in favour of decree
holders by removing the superstructures in it.
2. CRP No.2396 of 2015 is filed, under Section 115 of CPC,
challenging the docket order dated 18.6.2015 in E.A.No.99 of 2015
in EP No.55 of 2014 in O.S.No.1067 of 1999 on the file of the
Court of the I Additional Junior Civil Judge, Tirupati, wherein and
whereby the executing court granted police aid for execution of the
warrant.
3. CRP No.2397 of 2015 is filed, under Section 115 of CPC,
challenging the docket order dated 18.6.2015 in E.A.No.100 of
2015 in EP No.55 of 2014 in O.S.No.1067 of 1999 on the file of the
Court of the I Additional Junior Civil Judge, Tirupati, wherein and
whereby the executing court ordered to break open the E.P.
schedule property for execution of the warrant.
4. Since the point involved in all the revision petitions and the
parties to the proceedings are one and the same, this court is
inclined to dispose of these civil revision petitions by this common
order.
5. The contention of learned counsel for the petitioners-
Judgment debtors is three fold: (1) the executing court ought not to
have issued delivery warrant in view of pendency of A.S.No.47 of
2003; (2) the executing court failed to consider that EP No.55 of
2014 is not filed within the period of limitation as contemplated
under Article 136 of Limitation Act; and (2) if the orders of the
court below are allowed to stand, it would amount to miscarriage of
justice. Per contra, learned counsel for the respondents-Decree
holders submitted that mere pendency of appeal would not operate
automatically as stay of the execution proceedings. He further
submitted that in a suit for specific performance, the decree is
enforceable from the date of execution of sale deed and not from the
date of decree and that aspect was considered by the executing
court, in right perspective, and allowed the petition. He would
further submit that ex facie there is no illegality, irregularity or
impropriety in the impugned orders, which warrant interference of
this court, while exercising jurisdiction under Section 115 of CPC.
6. The relevant facts, for disposal of these revision petitions, are
succinctly as follows: B.Raghunath filed O.S.No.1067 of 1999 on
the file of the Court of I Additional Junior Civil Judge, Tirupati,
against Gutta Subramanyam, for specific performance of contract
basing on agreement of sale dated 14.7.1999 executed by Gutta
Subramanyam in favour of B.Raghunath. Basing on the oral and
documentary evidence available on record, the trial court decreed
the suit on 03.7.2000. For one reason or the other,
Subramanyam, who is the defendant in the suit, did not execute
the sale deed in favour of Raghunath, who is the plaintiff in the
suit. Having no other alternative, Raghunath filed E.P. No.489 of
2001 with a prayer to execute the sale deed in his favour by the
court. The sale deed was executed in favour of B.Raghunath by the
Court on 07.5.2003. B.Raghunath also filed E.A.No.1096 of 2003
for delivery of E.P. schedule property and E.A.No.2362 of 2003 for
Police aid and to break open the locks. During the pendency of
execution proceedings, Judgment debtor died and E.As were
closed. Again, E.A.No.1519 of 2004 was filed for delivery of E.P.
schedule property by removing the structures therein. Pending
those E.As, Decree holder died; therefore, the legal representatives
of the original Judgment debtor and legal representatives of
original Decree holder, were brought on record as Judgment debtor
Nos.2 to 4 (petitioner Nos.2 to 4 herein) and Decree holder Nos.2 to
4 (respondent Nos.2 to 4 herein) respectively.
7. While things stood thus, petitioner Nos.2 to 4 have filed O.S.
No.364 of 2004 against respondent Nos.2 to 4, for declaration that
decree dated 03.7.2000 passed in O.S.No.1067 of 1999 is void,
illegal, fraudulent and not binding on the petitioners. After full-
fledged trial, the trial court dismissed the suit. Aggrieved by the
dismissal of O.S.No.364 of 2004, petitioner Nos.2 to 4 have
preferred A.S.No.47 of 2013 on the file of the Court of III Additional
District Judge, Tirupati. Along with appeal, the petitioner Nos.2 to
4 also filed I.A.No.232 of 2013 seeking stay of all further
proceedings in O.S. No.364 of 2004. For one reason or other, the
appellate court declined to grant stay of further proceedings in the
suit. While things stood thus, respondent Nos.2 to 4 have filed
E.P.No.55 of 2014 under Order XXI Rule 35 read with Section 151
of CPC for delivery of E.P. schedule property. Petitioner Nos.2 to 4
have filed counter vehemently opposing the claim of the respondent
Nos.2 to 4, inter alia, contending that the E.P. is not maintainable
in view of pendency of A.S.No.47 of 2013. After affording
reasonable opportunity to both the parties, the executing court
allowed E.P. and E.As, as referred supra; hence the revision
petitions.
8. The following admitted facts can be culled out from the
pleadings and the material available on record. O.S.No.1067 of
1999 was decreed on 03.7.2000 with the following directions:
1. that the defendant to execute the sale deed in
pursuance of the agreement of sale dt.14.7.99, failing
which got it done through process of court.
2. directing the defendant to deliver the possession of the
plaint schedule property to the plaintiff, failing which the
same may be done through the process of court.
3. that the defendant be and are hereby restraining by
means of permanent injunction not to alienate the plaint
schedule property to third parties.
4. that there be no order as to costs.
A perusal of the record clearly reveals that in spite of specific
directions of the Court, Gutta Subramanyam did not execute sale
deed in favour of B.Raghunath in pursuance of the agreement of
sale dated 14.7.1999. It is not the case of the petitioner Nos.2 to 4
that though Subrahmanyam came forward to execute the sale
deed, B.Raghunath failed to obtain the sale deed. It is not the case
of the petitioner Nos.2 to 4 that Gutta Subramanyam had filed
appeal assailing the decree and judgment in O.S. No.1067 of 1999.
In view of non-filing of appeal by Gutta Subramanyam, decree
passed in O.S.No.1067 of 1999 became final and binding on him.
Since Gutta Subramanyam had not executed sale deed,
B.Raghunath filed E.P.No.489 of 2001 requesting the court for
execution of sale deed in his favour in pursuance of the decree in
O.S. No.1067 of 1999. Ultimately, sale deed was executed in
favour of B.Raghunath on 07.5.2003 through process of law.
Thereafter, B.Raghunath filed E.A.No.1519 of 2004 for delivery of
E.P. Schedule property. When the Field Assistant visited the E.P.
schedule property for execution of the warrant, petitioner Nos.2 to
4 have obstructed for delivery of the property. During the pendency
of E.A.No.1519 of 2004, B.Raghunath died and the E.P. was closed
on 23.9.2005. Subsequently, respondent Nos.2 to 4 came on
record as legal representatives of B.Raghunath and filed E.P.No.55
of 2014 for delivery of the E.P. schedule property. E.A.Nos.99 and
100 of 2015 were filed seeking Police aid and to break open the suit
schedule property respectively.
9. The points that arise for consideration, in these revision
petitions, are as follows:
1. Whether E.P. NO.55 of 2014 is barred by limitation or
not? and
2. Whether there is any illegality, irregularity or
impropriety in the impugned orders, which warrant
interference of this court?
Point Nos.1 and 2:
Since point Nos.1 and 2 are inter-linked with each other, I am
inclined to address these two points simultaneously, in order to
avoid recapitulation of facts and evidence.
10. The predominant contention of learned counsel for
petitioners-Judgment debtors is that in view of pendency of
A.S.No.47 of 2013, the executing court ought to have postponed
delivery of the E.P. schedule property. Per contra, learned counsel
for the respondents-Decree holders submitted that in view of non-
granting of interim stay in the appeal, the executing court cannot
stall the proceedings. As referred supra, petitioner Nos.2 to 4 have
filed O.S.No.364 of 2004 to declare the decree dated 03.7.2000 in
O.S.No.1067 of 1999 as void, illegal, fraudulent and not binding
on Judgment debtors. After full-fledged trial, the trial court
dismissed O.S.No.364 of 2004. Thereafter, petitioner Nos.2 to 4
have preferred A.S.No.47 of 2013 on the file of the Court of III
Additional District Judge, Tirupati and the same is pending. It is
not the case of the petitioner Nos.2 to 4 that they obtained interim
order in their favour during the pendency of the suit or appeal to
stay all further proceedings in E.P.No.55 of 2014 in O.S.No.1067 of
1999. The material available on record clinchingly establishes that
there is no prohibitory order to execute the decree in O.S.No.1067
of 1999. Mere pendency of an appeal by itself is not a valid ground
to stall the proceedings in the E.P. Therefore, I am unable to
countenance the submission of the learned counsel for the
petitioners-Judgment debtors that in view of pendency of
A.S.No.47 of 2013, the executing court ought not have ordered
delivery of E.P. schedule property.
11. The next question that falls for consideration is whether
E.P.No.55 of 2014 is filed within the period of limitation or not. It
is the contention of learned counsel for the petitioners-Judgment
debtors that in the instant case, period of limitation starts from
03.7.2000 i.e., from the date of decree in O.S.No.1067 of 1999.
The contention of learned counsel for the respondents-Decree
holders is that period of limitation starts with effect from 07.5.2003
i.e., the date of execution of the sale deed. In order to appreciate
the rival contentions, it is not out of place to extract hereunder
Article 136 of the Limitation Act.
136. For the
execution of
any decree
(other than
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 of
a decree granting a perpetual injunction shall not
be subject to any period of limitation.
A perusal of column Nos.1 and 2, at a glance, clearly reveals that
the period of limitation for execution of any decree, other than the
decree for mandatory injunction, is 12 years. One has to read the
three columns in juxtaposition in order to ascertain the underlying
object of the Article. The scope of interpretation of an Article
depends on the object for which such Article was enacted. It is
manifest, from a conjoint reading of column Nos.1, 2 and 3 of the
above Article, that the period of limitation has to be reckoned from
the date of enforceability of the decree or order. In order to achieve
the object for which the Article was enacted, the court has to
interpret the Article in such a way to facilitate the Decree holder to
enjoy the fruits of the decree regardless of the hyper-technicalities
on which the Judgment debtor is placing much reliance with an
ulterior motive. The Legislature, in its wisdom, incorporated
column No.3 in the Article indicating unambiguously its intention
that the period of limitation starts from the date of enforceability of
a decree. If not directly, by necessary implication, this Article
makes distinction between a decree per se and decree enforceable.
If there is no distinction between the date of decree and
enforceability of decree, there is no need to incorporate column
No.3 in the Article. The irresistible conclusion that can be drawn
from the above Article is that the date of a decree cannot be equated
with the date of enforceability of a decree. While reckoning the
period of limitation, the court shall not lose sight of the distinction
between the above two facets. The underlying object of column
No.3 of the Article is to extend the period of limitation, in certain
circumstances where the court while passing the decree imposes
certain clog or condition, stipulated in column Nos.1 and 2. It is
needless to say that the court passes decree basing on the nature of
the suit. In certain suits, the court has to pass preliminary and
final decree. In a suit for specific performance, while decreeing the
suit, the court directs the defendant to execute the sale deed in
favour of the plaintiff within a stipulated time. If the defendant fails
to execute the sale deed, then the plaintiff has to file E.P. seeking
the relief of execution of sale deed in his favour by the court.
Unless and until the sale deed is executed, either by the defendant
or on his failure by the court, the plaintiff will not become the
owner of the suit schedule property. The plaintiff, in a suit for
specific performance, is not entitled to file E.P. for delivery of the
schedule property without obtaining sale deed. It is needless to say
that the decree passed in favour of the plaintiff, in a suit for specific
performance, will be enforceable as contemplated under column
No.3 of Article 136 of the Limitation Act, from the date of obtaining
of the registered sale deed by the plaintiff-decree holder. During
this interregnum period, the decree obtained by the plaintiff is not
enforceable. When the decree itself is not enforceable in accordance
with law, the question of filing of E.P. for delivery of the suit
schedule property by the plaintiff is only a myth. By any stretch of
imagination, it cannot be presumed that the executing court would
issue delivery warrant in favour of the plaintiff, in a suit for specific
performance, unless and until registered sale deed is executed in
favour of the plaintiff. The decree in a partition suit cannot be
equated with that of a decree in a suit for specific performance of a
contract. In a suit for partition, a preliminary decree will be passed
at the first instance by determining the rights of the parties to the
suit. In a final decree proceedings, the court allocates the suit
schedule property as per the entitlement of the parties by metes
and bounds, if necessary, by appointing an advocate
commissioner. After passing of the final decree, the parties to the
proceedings have to submit non-judicial stamps for engrossing of
the decree. But in a suit for specific performance, the defendant
has to execute the sale deed in favour of the plaintiff as per the
terms and conditions of the decree. The defendant may not execute
the sale deed in favour of the plaintiff, for obvious reasons. In such
a situation, the only option left open to the plaintiff is to file an
E.P., seeking execution of the sale deed in his favour by the court.
The Parliament, in its wisdom, visualizing the human conduct
more particularly who lost the battle in the court, who eventually
may not comply the terms and conditions of the decree, with an
ulterior motive to deprive or postpone the enjoyment of the fruits of
the decree by the successful party as long as possible, incorporated
column No.3 in Article 136. In the case on hand, the trial court
passed the decree on 03.7.2000 enabling B.Raghunath to obtain
sale deed from Subramanyam and on his failure from the court by
following due procedure. It is not the case of the petitioner Nos.2 to
4 that B.Raghunath has not filed E.P. for execution of sale deed
within a reasonable time. If the limitation is reckoned by following
mathematical calculation from the date of decree i.e., 03.7.2000
undoubtedly the E.P. filed by the Decree holders is beyond the
period of limitation prescribed under Article 136 of the Limitation
Act. In a suit for specific performance, what is the effective date of
enforceability of a decree is the core issue to be addressed in these
revisions. To substantiate the argument, learned counsel for the
petitioners-Judgment debtors has drawn the attention of this court
to the decision in Dr.Chiranji Lal (D) By L.Rs v Hari Das (D) By
LRs , wherein the Hon'ble apex court held as para Nos.2, 25 and
26 as follows:
2. The question that arises for determination in this
matter is when would the period of limitation for
execution of a decree passed in a suit for partition
commence. In other words, question is when such a
decree becomes enforceable, from the date when the
decree is made or when the decree is engrossed on the
stamp paper, which, out of these two, would be the
starting point of limitation?
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
only thereafter the period of twelve years will begin to run
would lead to absurdity. In Yeswant Deorao Deshmukh v.
Walchand Ramchand Kothari, 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 above noted, 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. The engrossment of the decree on stamp
paper would relate back to the date of the decree, namely,
7-8-1981, in the present case. In this view the execution
application filed on 21-3-1994 was time-barred having
been filed beyond the period of twelve years prescribed
under Article 136 of the Act. The High Court committed
illegality in coming to the conclusion that it was not
barred by limitation.
As per the principle enunciated in the case cited supra, in a
partition suit, the limitation starts from the date of decree and not
from the date of filing of the non-judicial stamps for engrossing the
decree.
12. The learned counsel for the respondents-decree holders has
drawn the attention of this court to the following decisions:
(i) LAO, Bodhan v Gangadhar Rao , wherein the relevant portion
in para 5 reads as under:
5(d) 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 Mad. 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.
13. The following two principles can be deduced from the above
decision: (1) The decree holder is entitled to file any number of
Execution Petitions till expiry of period of limitation, and (2) Mere
dismissal of Execution Petition for statistical purpose would not
debar the decree holder to file another Execution Petition, within a
period of limitation.
(ii) Deep Chand v Mohan Lal , wherein the Hon'bleble apex Court
held at para Nos.6, 7 and 8 as follows:
6. It has been held in Akshoy Kumari Debi v. Nalini
Ranjan Mukherjee1, Kotta Annapurnamma v. Makku
Venkamma, AIR 1938 Mad 323, and Parmeshri v. Atti,
AIR 1958 Punjab 79, that:
It is the policy of law that Article 182 (now
Article 136) should receive a fair and liberal
and not a technical construction so as to
enable the decree-holder to reap the fruits of
his decree. It will not be in consonance with
the principles of just interpretation, to strain
the language of Article 182 in favour of a
judgment-debtor who has not paid his just
debt.
7. In the instant case the suit of the respondent was
decreed in the following terms:
It is ordered that the defendant is directed
to get executed the sale deed as per agreement
Exhibit PW-1/2 dated 13-8-1969 to sell the suit
land for Rs 25,000 in favour of the plaintiff. The
defendant will get only Rs 14,782 before the
Sub-Registrar at the time of registration. He
had received Rs 10,218. The plaintiff will pay
the expenses on account of stamp and
registration of the sale deed in question and
plaintiff is also entitled to possession of this
land as soon as the sale deed is executed and
registered. The defendant is now directed that
he should execute and get registered the sale
deed by 22-3-1973 on the above terms failing
which the plaintiff can get the sale deed
executed through court. Suit of the plaintiff is
accordingly decreed with costs.
8. As noted earlier, the appellant judgment-debtors are
found to have committed defaults in the payment of the
instalments as agreed upon. The decree-holder was,
therefore, entitled to get the sale deed executed in
terms of the decree passed in his favour. He was held
entitled to possession of the land as soon as the sale
deed was executed and registered. It is not disputed
that the sale deed was executed in favour of the decree-
holder vide court orders dated 23-3-1984. The
execution application seeking possession of the land,
the subject-matter of the decree, was filed in April
1994, admittedly, within a period of twelve years as
prescribed under Article 136 of the Limitation Act. The
High Court has rightly held that the decree for
possession of the land became enforceable only after
the execution of the sale deed as was the direction of
the Court decreeing the suit. Before the execution of
the sale deed in his favour on 23-3-1984, the decree-
holder was not entitled to possession in terms of the
decree. The decree, therefore, itself directed its
execution after the execution of the sale deed in favour
of the decree-holder. The decree-holder has been
proved to have filed successive applications for the
execution of the decree within the period of limitation.
The language of Article 136 cannot be strained in
favour of the judgment-debtors who have been found to
have not availed of the benefits of the decree conferred
upon them as they are proved to have failed to pay the
amount even in instalments. The decree in the instant
case is not capable of any other interpretation. As a
general rule the executing court should not find ways
to dismiss the execution application as barred by time
unless it is established, beyond doubt, that such an
application was beyond limitation.
14. As per the principle enunciated in the case cited supra, in a
suit for specific performance of contract, decree is enforceable from
the date of execution of the sale deed. The period of limitation has
to be reckoned from the date of execution of the sale deed and not
from the date of the decree.
15. The learned counsel for the petitioner Nos.2 to 4 strenuously
submitted that Dr.Chiranji Lal (2005) Judgment was delivered by
the full-bench whereas Deep Chand (2000) Judgment was
delivered by the division bench; therefore, the principle enunciated
in Dr.Chiranji Lal case will prevail over the principle enunciated in
Deep Chand case. In Dr.Chiranji Lal case the Full Bench of the
Supreme Court neither considered nor over-ruled the judgment in
Deep Chand case. When two judgments of the Supreme Court laid
down two different principles, basing on facts and circumstances of
those cases, the principles enunciated in those two cases will
become precedents and are binding on the High Courts as well as
subordinate courts, in the same set of facts and circumstances, in
view of Article 141 of the Constitution of India. In both the cases,
though the Supreme Court dealt with period of limitation under
Article 136 of the Limitation Act, the issue involved in those two
cases is quite distinct and different. In Deep Chand case, the
Supreme Court considered the scope of column No.3 of Article 136
of Limitation Act. The principle enunciated in the above two cases
is not one and the same. As observed earlier, the civil court passes
a decree basing on the nature of the suit. A final decree passed in
a partition suit cannot be equated with a decree passed in a suit for
specific performance. The period of limitation is to be reckoned, as
ordained under Article 136 of the Limitation Act, from the date of
enforceability of decree in certain suits and from the date of decree
in other suits. Having regard to the facts and circumstances of the
case and also the principles enunciated in the cases cited supra, I
am unable to countenance the submissions made by the learned
counsel for the petitioners that the principle enunciated in Deep
Chand case is not binding in view of subsequent Full Bench
judgment in Dr.Chiranji Lal case.
16. Having regard to the facts and circumstances of the case and
also the principles enunciated in the cases cited supra, I am of the
considered view that in a suit for specific performance of contract,
the plaintiff gets right of enforceability of decree to take delivery of
the suit schedule property from the date of registration of sale deed
in his favour and in view of Article 136 of the Limitation Act, the
period of limitation commences from the date of the registration of
the sale deed. In the instant case, the trial court decreed the suit on
03.7.2000, and consequently executed the sale deed in favour of
plaintiff-Decree holder No.1 on 07.5.2003. From 03.7.2000 to
07.5.2003, the decree passed in favour of the plaintiff is not
enforceable or executable so far as delivery of the suit schedule
property is concerned. For all practical and legal purposes, the
decree was enforceable with effect from 08.5.2003. Therefore,
respondent Nos.2 to 4 are entitled to file the E.P. for delivery of the
property on or before 07.5.2015. Respondent Nos.2 to 4 have filed
Execution Petition in the year 2013, but the same was numbered
in the year 2014 as E.P. No.55 of 2014. The material placed before
the court below clinchingly establishes that the E.P. was filed
within the period of limitation. The executing Court has assigned
reasons much less cogent and valid reasons while allowing the
petitions. The findings recorded by the executing court are based
on material available on record. I am fully endorsing the findings
recorded by the executing court. There is no illegality, irregularity
or impropriety in the orders passed by the executing court, which
warrant interference of this court while exercising jurisdiction
under Section 115 of CPC. Accordingly, the points are answered
against the petitioners-Judgment debtors.
17. In the result, the civil revision petitions are dismissed.
Miscellaneous petitions, if any pending in these civil revision
petitions, shall stand closed.
_________________________
T.SUNIL CHOWDARY, J
Date: 05.6.2017.
HONOURABLE SRI JUSTICE T.SUNIL CHOWDARY
CIVIL REVISION PETITION Nos.2396 of 2015
05-06-2017
G.Subramanyam (died) represented by his L.Rs G.Sugunamma and others Revision Petitioners/Petitioners-J.Drs
B.Raghunath (died) represented by his L.Rs B.Revathi and others Respondents/Respondents-D.Hrs
Counsel for revision petitioners:Sri Ch.Venkat Raman
Counsel for respondents:Sri T.Janardhan Rao
<GIST:
>HEAD NOTE:
? CASES REFERRED:
1.(2005) 10 SCC 746
2.2015 (2) ALD 150
3.AIR 2000 SC 1760
THE HONBLE SRI JUSTICE T.SUNIL CHOWDARY
CIVIL REVISION PETITION Nos.2396, 2397 and 2642 of 2015
COMMON ORDER:
CRP No.2642 of 2015 is filed, under Section 115 of CPC,
challenging the order dated 06.3.2015 in EP No.55 of 2014 in
O.S.No.1067 of 1999 on the file of the Court of the I Additional
Junior Civil Judge, Tirupati, wherein and whereby the executing
court ordered delivery of E.P. schedule property in favour of decree
holders by removing the superstructures in it.
2. CRP No.2396 of 2015 is filed, under Section 115 of CPC,
challenging the docket order dated 18.6.2015 in E.A.No.99 of 2015
in EP No.55 of 2014 in O.S.No.1067 of 1999 on the file of the
Court of the I Additional Junior Civil Judge, Tirupati, wherein and
whereby the executing court granted police aid for execution of the
warrant.
3. CRP No.2397 of 2015 is filed, under Section 115 of CPC,
challenging the docket order dated 18.6.2015 in E.A.No.100 of
2015 in EP No.55 of 2014 in O.S.No.1067 of 1999 on the file of the
Court of the I Additional Junior Civil Judge, Tirupati, wherein and
whereby the executing court ordered to break open the E.P.
schedule property for execution of the warrant.
4. Since the point involved in all the revision petitions and the
parties to the proceedings are one and the same, this court is
inclined to dispose of these civil revision petitions by this common
order.
5. The contention of learned counsel for the petitioners-
Judgment debtors is three fold: (1) the executing court ought not to
have issued delivery warrant in view of pendency of A.S.No.47 of
2003; (2) the executing court failed to consider that EP No.55 of
2014 is not filed within the period of limitation as contemplated
under Article 136 of Limitation Act; and (2) if the orders of the
court below are allowed to stand, it would amount to miscarriage of
justice. Per contra, learned counsel for the respondents-Decree
holders submitted that mere pendency of appeal would not operate
automatically as stay of the execution proceedings. He further
submitted that in a suit for specific performance, the decree is
enforceable from the date of execution of sale deed and not from the
date of decree and that aspect was considered by the executing
court, in right perspective, and allowed the petition. He would
further submit that ex facie there is no illegality, irregularity or
impropriety in the impugned orders, which warrant interference of
this court, while exercising jurisdiction under Section 115 of CPC.
6. The relevant facts, for disposal of these revision petitions, are
succinctly as follows: B.Raghunath filed O.S.No.1067 of 1999 on
the file of the Court of I Additional Junior Civil Judge, Tirupati,
against Gutta Subramanyam, for specific performance of contract
basing on agreement of sale dated 14.7.1999 executed by Gutta
Subramanyam in favour of B.Raghunath. Basing on the oral and
documentary evidence available on record, the trial court decreed
the suit on 03.7.2000. For one reason or the other,
Subramanyam, who is the defendant in the suit, did not execute
the sale deed in favour of Raghunath, who is the plaintiff in the
suit. Having no other alternative, Raghunath filed E.P. No.489 of
2001 with a prayer to execute the sale deed in his favour by the
court. The sale deed was executed in favour of B.Raghunath by the
Court on 07.5.2003. B.Raghunath also filed E.A.No.1096 of 2003
for delivery of E.P. schedule property and E.A.No.2362 of 2003 for
Police aid and to break open the locks. During the pendency of
execution proceedings, Judgment debtor died and E.As were
closed. Again, E.A.No.1519 of 2004 was filed for delivery of E.P.
schedule property by removing the structures therein. Pending
those E.As, Decree holder died; therefore, the legal representatives
of the original Judgment debtor and legal representatives of
original Decree holder, were brought on record as Judgment debtor
Nos.2 to 4 (petitioner Nos.2 to 4 herein) and Decree holder Nos.2 to
4 (respondent Nos.2 to 4 herein) respectively.
7. While things stood thus, petitioner Nos.2 to 4 have filed O.S.
No.364 of 2004 against respondent Nos.2 to 4, for declaration that
decree dated 03.7.2000 passed in O.S.No.1067 of 1999 is void,
illegal, fraudulent and not binding on the petitioners. After full-
fledged trial, the trial court dismissed the suit. Aggrieved by the
dismissal of O.S.No.364 of 2004, petitioner Nos.2 to 4 have
preferred A.S.No.47 of 2013 on the file of the Court of III Additional
District Judge, Tirupati. Along with appeal, the petitioner Nos.2 to
4 also filed I.A.No.232 of 2013 seeking stay of all further
proceedings in O.S. No.364 of 2004. For one reason or other, the
appellate court declined to grant stay of further proceedings in the
suit. While things stood thus, respondent Nos.2 to 4 have filed
E.P.No.55 of 2014 under Order XXI Rule 35 read with Section 151
of CPC for delivery of E.P. schedule property. Petitioner Nos.2 to 4
have filed counter vehemently opposing the claim of the respondent
Nos.2 to 4, inter alia, contending that the E.P. is not maintainable
in view of pendency of A.S.No.47 of 2013. After affording
reasonable opportunity to both the parties, the executing court
allowed E.P. and E.As, as referred supra; hence the revision
petitions.
8. The following admitted facts can be culled out from the
pleadings and the material available on record. O.S.No.1067 of
1999 was decreed on 03.7.2000 with the following directions:
1. that the defendant to execute the sale deed in
pursuance of the agreement of sale dt.14.7.99, failing
which got it done through process of court.
2. directing the defendant to deliver the possession of the
plaint schedule property to the plaintiff, failing which the
same may be done through the process of court.
3. that the defendant be and are hereby restraining by
means of permanent injunction not to alienate the plaint
schedule property to third parties.
4. that there be no order as to costs.
A perusal of the record clearly reveals that in spite of specific
directions of the Court, Gutta Subramanyam did not execute sale
deed in favour of B.Raghunath in pursuance of the agreement of
sale dated 14.7.1999. It is not the case of the petitioner Nos.2 to 4
that though Subrahmanyam came forward to execute the sale
deed, B.Raghunath failed to obtain the sale deed. It is not the case
of the petitioner Nos.2 to 4 that Gutta Subramanyam had filed
appeal assailing the decree and judgment in O.S. No.1067 of 1999.
In view of non-filing of appeal by Gutta Subramanyam, decree
passed in O.S.No.1067 of 1999 became final and binding on him.
Since Gutta Subramanyam had not executed sale deed,
B.Raghunath filed E.P.No.489 of 2001 requesting the court for
execution of sale deed in his favour in pursuance of the decree in
O.S. No.1067 of 1999. Ultimately, sale deed was executed in
favour of B.Raghunath on 07.5.2003 through process of law.
Thereafter, B.Raghunath filed E.A.No.1519 of 2004 for delivery of
E.P. Schedule property. When the Field Assistant visited the E.P.
schedule property for execution of the warrant, petitioner Nos.2 to
4 have obstructed for delivery of the property. During the pendency
of E.A.No.1519 of 2004, B.Raghunath died and the E.P. was closed
on 23.9.2005. Subsequently, respondent Nos.2 to 4 came on
record as legal representatives of B.Raghunath and filed E.P.No.55
of 2014 for delivery of the E.P. schedule property. E.A.Nos.99 and
100 of 2015 were filed seeking Police aid and to break open the suit
schedule property respectively.
9. The points that arise for consideration, in these revision
petitions, are as follows:
1. Whether E.P. NO.55 of 2014 is barred by limitation or
not? and
2. Whether there is any illegality, irregularity or
impropriety in the impugned orders, which warrant
interference of this court?
Point Nos.1 and 2:
Since point Nos.1 and 2 are inter-linked with each other, I am
inclined to address these two points simultaneously, in order to
avoid recapitulation of facts and evidence.
10. The predominant contention of learned counsel for
petitioners-Judgment debtors is that in view of pendency of
A.S.No.47 of 2013, the executing court ought to have postponed
delivery of the E.P. schedule property. Per contra, learned counsel
for the respondents-Decree holders submitted that in view of non-
granting of interim stay in the appeal, the executing court cannot
stall the proceedings. As referred supra, petitioner Nos.2 to 4 have
filed O.S.No.364 of 2004 to declare the decree dated 03.7.2000 in
O.S.No.1067 of 1999 as void, illegal, fraudulent and not binding
on Judgment debtors. After full-fledged trial, the trial court
dismissed O.S.No.364 of 2004. Thereafter, petitioner Nos.2 to 4
have preferred A.S.No.47 of 2013 on the file of the Court of III
Additional District Judge, Tirupati and the same is pending. It is
not the case of the petitioner Nos.2 to 4 that they obtained interim
order in their favour during the pendency of the suit or appeal to
stay all further proceedings in E.P.No.55 of 2014 in O.S.No.1067 of
1999. The material available on record clinchingly establishes that
there is no prohibitory order to execute the decree in O.S.No.1067
of 1999. Mere pendency of an appeal by itself is not a valid ground
to stall the proceedings in the E.P. Therefore, I am unable to
countenance the submission of the learned counsel for the
petitioners-Judgment debtors that in view of pendency of
A.S.No.47 of 2013, the executing court ought not have ordered
delivery of E.P. schedule property.
11. The next question that falls for consideration is whether
E.P.No.55 of 2014 is filed within the period of limitation or not. It
is the contention of learned counsel for the petitioners-Judgment
debtors that in the instant case, period of limitation starts from
03.7.2000 i.e., from the date of decree in O.S.No.1067 of 1999.
The contention of learned counsel for the respondents-Decree
holders is that period of limitation starts with effect from 07.5.2003
i.e., the date of execution of the sale deed. In order to appreciate
the rival contentions, it is not out of place to extract hereunder
Article 136 of the Limitation Act.
136. For the
execution of
any decree
(other than
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 of
a decree granting a perpetual injunction shall not
be subject to any period of limitation.
A perusal of column Nos.1 and 2, at a glance, clearly reveals that
the period of limitation for execution of any decree, other than the
decree for mandatory injunction, is 12 years. One has to read the
three columns in juxtaposition in order to ascertain the underlying
object of the Article. The scope of interpretation of an Article
depends on the object for which such Article was enacted. It is
manifest, from a conjoint reading of column Nos.1, 2 and 3 of the
above Article, that the period of limitation has to be reckoned from
the date of enforceability of the decree or order. In order to achieve
the object for which the Article was enacted, the court has to
interpret the Article in such a way to facilitate the Decree holder to
enjoy the fruits of the decree regardless of the hyper-technicalities
on which the Judgment debtor is placing much reliance with an
ulterior motive. The Legislature, in its wisdom, incorporated
column No.3 in the Article indicating unambiguously its intention
that the period of limitation starts from the date of enforceability of
a decree. If not directly, by necessary implication, this Article
makes distinction between a decree per se and decree enforceable.
If there is no distinction between the date of decree and
enforceability of decree, there is no need to incorporate column
No.3 in the Article. The irresistible conclusion that can be drawn
from the above Article is that the date of a decree cannot be equated
with the date of enforceability of a decree. While reckoning the
period of limitation, the court shall not lose sight of the distinction
between the above two facets. The underlying object of column
No.3 of the Article is to extend the period of limitation, in certain
circumstances where the court while passing the decree imposes
certain clog or condition, stipulated in column Nos.1 and 2. It is
needless to say that the court passes decree basing on the nature of
the suit. In certain suits, the court has to pass preliminary and
final decree. In a suit for specific performance, while decreeing the
suit, the court directs the defendant to execute the sale deed in
favour of the plaintiff within a stipulated time. If the defendant fails
to execute the sale deed, then the plaintiff has to file E.P. seeking
the relief of execution of sale deed in his favour by the court.
Unless and until the sale deed is executed, either by the defendant
or on his failure by the court, the plaintiff will not become the
owner of the suit schedule property. The plaintiff, in a suit for
specific performance, is not entitled to file E.P. for delivery of the
schedule property without obtaining sale deed. It is needless to say
that the decree passed in favour of the plaintiff, in a suit for specific
performance, will be enforceable as contemplated under column
No.3 of Article 136 of the Limitation Act, from the date of obtaining
of the registered sale deed by the plaintiff-decree holder. During
this interregnum period, the decree obtained by the plaintiff is not
enforceable. When the decree itself is not enforceable in accordance
with law, the question of filing of E.P. for delivery of the suit
schedule property by the plaintiff is only a myth. By any stretch of
imagination, it cannot be presumed that the executing court would
issue delivery warrant in favour of the plaintiff, in a suit for specific
performance, unless and until registered sale deed is executed in
favour of the plaintiff. The decree in a partition suit cannot be
equated with that of a decree in a suit for specific performance of a
contract. In a suit for partition, a preliminary decree will be passed
at the first instance by determining the rights of the parties to the
suit. In a final decree proceedings, the court allocates the suit
schedule property as per the entitlement of the parties by metes
and bounds, if necessary, by appointing an advocate
commissioner. After passing of the final decree, the parties to the
proceedings have to submit non-judicial stamps for engrossing of
the decree. But in a suit for specific performance, the defendant
has to execute the sale deed in favour of the plaintiff as per the
terms and conditions of the decree. The defendant may not execute
the sale deed in favour of the plaintiff, for obvious reasons. In such
a situation, the only option left open to the plaintiff is to file an
E.P., seeking execution of the sale deed in his favour by the court.
The Parliament, in its wisdom, visualizing the human conduct
more particularly who lost the battle in the court, who eventually
may not comply the terms and conditions of the decree, with an
ulterior motive to deprive or postpone the enjoyment of the fruits of
the decree by the successful party as long as possible, incorporated
column No.3 in Article 136. In the case on hand, the trial court
passed the decree on 03.7.2000 enabling B.Raghunath to obtain
sale deed from Subramanyam and on his failure from the court by
following due procedure. It is not the case of the petitioner Nos.2 to
4 that B.Raghunath has not filed E.P. for execution of sale deed
within a reasonable time. If the limitation is reckoned by following
mathematical calculation from the date of decree i.e., 03.7.2000
undoubtedly the E.P. filed by the Decree holders is beyond the
period of limitation prescribed under Article 136 of the Limitation
Act. In a suit for specific performance, what is the effective date of
enforceability of a decree is the core issue to be addressed in these
revisions. To substantiate the argument, learned counsel for the
petitioners-Judgment debtors has drawn the attention of this court
to the decision in Dr.Chiranji Lal (D) By L.Rs v Hari Das (D) By
LRs , wherein the Hon'ble apex court held as para Nos.2, 25 and
26 as follows:
2. The question that arises for determination in this
matter is when would the period of limitation for
execution of a decree passed in a suit for partition
commence. In other words, question is when such a
decree becomes enforceable, from the date when the
decree is made or when the decree is engrossed on the
stamp paper, which, out of these two, would be the
starting point of limitation?
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
only thereafter the period of twelve years will begin to run
would lead to absurdity. In Yeswant Deorao Deshmukh v.
Walchand Ramchand Kothari, 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 above noted, 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. The engrossment of the decree on stamp
paper would relate back to the date of the decree, namely,
7-8-1981, in the present case. In this view the execution
application filed on 21-3-1994 was time-barred having
been filed beyond the period of twelve years prescribed
under Article 136 of the Act. The High Court committed
illegality in coming to the conclusion that it was not
barred by limitation.
As per the principle enunciated in the case cited supra, in a
partition suit, the limitation starts from the date of decree and not
from the date of filing of the non-judicial stamps for engrossing the
decree.
12. The learned counsel for the respondents-decree holders has
drawn the attention of this court to the following decisions:
(i) LAO, Bodhan v Gangadhar Rao , wherein the relevant portion
in para 5 reads as under:
5(d) 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 Mad. 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.
13. The following two principles can be deduced from the above
decision: (1) The decree holder is entitled to file any number of
Execution Petitions till expiry of period of limitation, and (2) Mere
dismissal of Execution Petition for statistical purpose would not
debar the decree holder to file another Execution Petition, within a
period of limitation.
(ii) Deep Chand v Mohan Lal , wherein the Hon'bleble apex Court
held at para Nos.6, 7 and 8 as follows:
6. It has been held in Akshoy Kumari Debi v. Nalini
Ranjan Mukherjee1, Kotta Annapurnamma v. Makku
Venkamma, AIR 1938 Mad 323, and Parmeshri v. Atti,
AIR 1958 Punjab 79, that:
It is the policy of law that Article 182 (now
Article 136) should receive a fair and liberal
and not a technical construction so as to
enable the decree-holder to reap the fruits of
his decree. It will not be in consonance with
the principles of just interpretation, to strain
the language of Article 182 in favour of a
judgment-debtor who has not paid his just
debt.
7. In the instant case the suit of the respondent was
decreed in the following terms:
It is ordered that the defendant is directed
to get executed the sale deed as per agreement
Exhibit PW-1/2 dated 13-8-1969 to sell the suit
land for Rs 25,000 in favour of the plaintiff. The
defendant will get only Rs 14,782 before the
Sub-Registrar at the time of registration. He
had received Rs 10,218. The plaintiff will pay
the expenses on account of stamp and
registration of the sale deed in question and
plaintiff is also entitled to possession of this
land as soon as the sale deed is executed and
registered. The defendant is now directed that
he should execute and get registered the sale
deed by 22-3-1973 on the above terms failing
which the plaintiff can get the sale deed
executed through court. Suit of the plaintiff is
accordingly decreed with costs.
8. As noted earlier, the appellant judgment-debtors are
found to have committed defaults in the payment of the
instalments as agreed upon. The decree-holder was,
therefore, entitled to get the sale deed executed in
terms of the decree passed in his favour. He was held
entitled to possession of the land as soon as the sale
deed was executed and registered. It is not disputed
that the sale deed was executed in favour of the decree-
holder vide court orders dated 23-3-1984. The
execution application seeking possession of the land,
the subject-matter of the decree, was filed in April
1994, admittedly, within a period of twelve years as
prescribed under Article 136 of the Limitation Act. The
High Court has rightly held that the decree for
possession of the land became enforceable only after
the execution of the sale deed as was the direction of
the Court decreeing the suit. Before the execution of
the sale deed in his favour on 23-3-1984, the decree-
holder was not entitled to possession in terms of the
decree. The decree, therefore, itself directed its
execution after the execution of the sale deed in favour
of the decree-holder. The decree-holder has been
proved to have filed successive applications for the
execution of the decree within the period of limitation.
The language of Article 136 cannot be strained in
favour of the judgment-debtors who have been found to
have not availed of the benefits of the decree conferred
upon them as they are proved to have failed to pay the
amount even in instalments. The decree in the instant
case is not capable of any other interpretation. As a
general rule the executing court should not find ways
to dismiss the execution application as barred by time
unless it is established, beyond doubt, that such an
application was beyond limitation.
14. As per the principle enunciated in the case cited supra, in a
suit for specific performance of contract, decree is enforceable from
the date of execution of the sale deed. The period of limitation has
to be reckoned from the date of execution of the sale deed and not
from the date of the decree.
15. The learned counsel for the petitioner Nos.2 to 4 strenuously
submitted that Dr.Chiranji Lal (2005) Judgment was delivered by
the full-bench whereas Deep Chand (2000) Judgment was
delivered by the division bench; therefore, the principle enunciated
in Dr.Chiranji Lal case will prevail over the principle enunciated in
Deep Chand case. In Dr.Chiranji Lal case the Full Bench of the
Supreme Court neither considered nor over-ruled the judgment in
Deep Chand case. When two judgments of the Supreme Court laid
down two different principles, basing on facts and circumstances of
those cases, the principles enunciated in those two cases will
become precedents and are binding on the High Courts as well as
subordinate courts, in the same set of facts and circumstances, in
view of Article 141 of the Constitution of India. In both the cases,
though the Supreme Court dealt with period of limitation under
Article 136 of the Limitation Act, the issue involved in those two
cases is quite distinct and different. In Deep Chand case, the
Supreme Court considered the scope of column No.3 of Article 136
of Limitation Act. The principle enunciated in the above two cases
is not one and the same. As observed earlier, the civil court passes
a decree basing on the nature of the suit. A final decree passed in
a partition suit cannot be equated with a decree passed in a suit for
specific performance. The period of limitation is to be reckoned, as
ordained under Article 136 of the Limitation Act, from the date of
enforceability of decree in certain suits and from the date of decree
in other suits. Having regard to the facts and circumstances of the
case and also the principles enunciated in the cases cited supra, I
am unable to countenance the submissions made by the learned
counsel for the petitioners that the principle enunciated in Deep
Chand case is not binding in view of subsequent Full Bench
judgment in Dr.Chiranji Lal case.
16. Having regard to the facts and circumstances of the case and
also the principles enunciated in the cases cited supra, I am of the
considered view that in a suit for specific performance of contract,
the plaintiff gets right of enforceability of decree to take delivery of
the suit schedule property from the date of registration of sale deed
in his favour and in view of Article 136 of the Limitation Act, the
period of limitation commences from the date of the registration of
the sale deed. In the instant case, the trial court decreed the suit on
03.7.2000, and consequently executed the sale deed in favour of
plaintiff-Decree holder No.1 on 07.5.2003. From 03.7.2000 to
07.5.2003, the decree passed in favour of the plaintiff is not
enforceable or executable so far as delivery of the suit schedule
property is concerned. For all practical and legal purposes, the
decree was enforceable with effect from 08.5.2003. Therefore,
respondent Nos.2 to 4 are entitled to file the E.P. for delivery of the
property on or before 07.5.2015. Respondent Nos.2 to 4 have filed
Execution Petition in the year 2013, but the same was numbered
in the year 2014 as E.P. No.55 of 2014. The material placed before
the court below clinchingly establishes that the E.P. was filed
within the period of limitation. The executing Court has assigned
reasons much less cogent and valid reasons while allowing the
petitions. The findings recorded by the executing court are based
on material available on record. I am fully endorsing the findings
recorded by the executing court. There is no illegality, irregularity
or impropriety in the orders passed by the executing court, which
warrant interference of this court while exercising jurisdiction
under Section 115 of CPC. Accordingly, the points are answered
against the petitioners-Judgment debtors.
17. In the result, the civil revision petitions are dismissed.
Miscellaneous petitions, if any pending in these civil revision
petitions, shall stand closed.
_________________________
T.SUNIL CHOWDARY, J
Date: 05.6.2017.
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