Mohan Lal vs Deep Chand and Others

R.L. Anand, J.—This is a civil revision and has been directed against the order dated 24th September, 1998 passed by the Court of Civil Judge (Junior Division), Palwal (Executing Court), who dismissed the execution application of the decree holder Mohan Lal.

The brief facts of the case are that Mohan Lal filed a suit for possession by way of specific performance on the basis of the agreement of sale. The suit was decreed by the trial Court and the following order was passed on 22nd February, 1973;-

"It is ordered that the defendant is directed to get executed the sale deed as per agreement Exhibit PW1/2 dated 13th August, 1969 to sell the suit land for Rs. 25,000/- in favour of the plaintiffs. 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 22nd March, 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."

The defendant filed an appeal before the first appellate authority and during the pendency of the appeal, a compromise was effected, which reads as under: -

"In view of the statement of the parties, the appeal filed by defendant is hereby dismissed. The suit of the plaintiff/respondent is decreed with costs throughout, subject to the condition that in case the appellants make the payment of an amount of Rs. 15,500/- to-the-plaintiff/respondent against receipt or deposit in the Court in the following manner, the suit of the plaintiff shall stand dismissed and appeal accepted.

(i) On or before 15th April, 1981 Rs. 7,750.00 (ii) On or before 15th May, 1981 Rs. 7,750.00 In the event of failing of any of the instalments, the suit of the plaintiff/ respondent shall stand decreed with costs throughout and appeal dismissed."

It is common case of the parties that the defendant committed default in the payment of the instalments as agreed upon and the point for determination is when the limitation will start for the execution of the decree. The learned Executing Court dismissed the execution application for the reasons given in para 4 of the order, which reads as under:-

"In view of the submissions made by learned counsel for both the parties and on perusal of documents on file, this Court finds that there is a substance in the arguments led by learned counsel on behalf of the Judgment Debtors that the decree becomes conclusive on the date of depositing of first instalment, the date of which was 15th April, 1981. But, the D.H. has filed the present execution application on 22nd March, 1994, which is not filed within the prescribed period of limitation. Therefore, in consonance with the arguments led by learned counsel on behalf of Judgment Debtors the execution application of D.H. is dismissed being time barred. File after compliance be consigned to the record room."

Aggrieved by the order, the present revision, which I am disposing of with the assistance of the counsel for the parties and have also gone through the record of this case.

This Court is of the considered opinion that the order of the Executing Court cannot sustain in the eyes of law. It is the common case of the parties that the second default was committed by the Judgment Debtor and he did not deposit, the amount on or before 15th May, 1981. This furnishes a cause of action to the decree holder to get the decree executed. The first execution application was dismissed in default on 17th December, 1982. Second execution application was filed on 18th December, 1983. In this execution application, the Judgment Debtor was called upon to execute the decree in terms of the judgment. He failed to do so as a result of which the Court appointed a Local Commissioner, i.e. the reader, and he executed the sale deed on behalf of the defendant-Judgment Debtor in favour of the decree holder on 23rd March, 1984. This execution application was also dismissed in default on 12th June, 1984. Again, the third execution application was filed on 17th May, 1986 and it was dismissed in default on 21st September, 1992. Fourth execution application was filed by the decree holder on 2nd March, 1994 in which the objection was filed by the Judgment Debtor that the decree is not executable.

The learned counsel for the respondent submits that the cause of action arose to the decree holder on 15th May, 1981, and in these circumstances, he could file the execution application within 12 years from that date. Since, the last execution application was filed by the decree holder on 2nd March, 1994, therefore, it is beyond limitation.

I am not in a position to accept the submission of the learned counsel for the respondent. I have already reproduced above the terms of the judgment and decree which was passed by the trial Court and approved by the appellate Court. The decree of the trial Court merged in the decree of the appellate Court. It was categorically declared by the trial Court that the plaintiff shall be entitled to the possession of the land in dispute as soon as the sale deed is executed in his favour. This sale deed was executed vide orders of the Court on 23rd March, 1984. As per Article 136 of the Indian Limitation Act, the limitation is 12 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.

The present case can be viewed from another angle. Admittedly, the decree of the first appellate Court was passed on 11th March, 1981. The first execution application was dismissed in default on 17th December, 1982, i.e. within 12 years. The last execution application was dismissed in default on 17th May, 1986 All the successor applications were step in aid of the first execution application, which was dismissed in default on 17th December, 1982. In these circumstances, 12 years limitation will start running from the date of the last dismissal of the execution application. The Executing Court has not rightly appreciated the law on this aspect.

Resultantly, the revision is allowed and the impugned order dated 24th September, 1998 is hereby set aside and directions are given to the executing Court to restore the application and proceed according to law.

The parties, through their counsel, are directed to appear before the trial Court on 1st September, 1999.