Nabla Banoo vs Ghulam Ali and Others

Bashir A. Kirmani, J.—Way back in December, 1968 petitioner herein instituted a civil suit against respondents their predecessors in

interest for partition of moveable and Immovable property comprising of a three storied house 24' x 16' and land measuring 134 kanals and seven

marlas situated at Buchwara, Srinagar under of Khewat No. 16 and Khasra No. 104, 151 to 155 158,169, 180, 18, 218, 228, 240,

278,281,303,308,311,272,373,287,452,516 and 520 (old), Khewat No. 14, survey Nos, 104, 591/151,153,593/152, i54,165, 168,

631/169,180,187,238, 240, 272, 278. 281, 634/303, 677/613/387, 678/613/387, 679/613/387, on various grounds mentioned in memo of

plaint mainly based on inheritance. While the suit was being tried in this Court on original side with issues framed as far back as in August, 1969

and plaintiff leading her evidence, under interim order of 9.12.1970 while observing that there were chances of amicable settlement this Court

deferred the trial and on application of parties appointed late Mr. S.M. Rizvi, the then Mobile Magistrate, Srinagar as arbitrator vide interim order

dated: 10.12.1970, On his refusal to act as such, vide order of 18.4.1971 Late Sh. Justice G.M. Mir, then District and Sessions Judge, Baramulla

was appointed as sole arbitrator with his consent.

On 22.2.1979 when the arbitrator so appointed was a Judge of this Court, the matter was listed before His lordship who directed placement of the

file before Hon'ble Chief Justice for assignment of the case to some other Bench whereupon vide interim order dated 9.4.1979 it appears to have

been assigned to the then Justice Mufti Bahau-ud-din who vide interim order dated: 2.5.1979 appears to have declined hearing the matter for

personnel reasons where after it appears to have been referred back to the then Justice G.M. Mir who after prolonged proceedings sometime in

May, 1973 adopted the issues already framed as points of reference and continued with arbitration proceedings, during course whereof on

20.7.1974 after agreement of parties, His lordship appointed one Munshi Ahmad Ali as Commissioner to report regarding the area of suit land in

possession of defendant Nazir Ahmad Wani. Finally on 13.11.1979 the learned arbitrator appears to have concluded the matter and while

observing that the dispute between parties essentially related to the estate of one Samad Bhat their great grant ancestor finally opined that

defendants 1 to 7 in the suit could through their mother Mst. Sara Bibi held entitled to possess 8 kanals of land while as a matter of fact 10 kanals

and 5 marlas had been found to be in their possession who accordingly were in possession 2 kanals and five marl as excess land and finally passed

the following award:

In partial satisfaction of her claim I award to the plaintiff 2 kanals and five marlas of land situated at Buchwara, Srinagar at present in possession of

defendants Ghulam Ali, Ghulam Mohammad, Mohammad Amin and Nazir Ahmad as shown at mark ""D"" in the report EXD4 of the above said

report, of Commissioner marked as EXD5. This share of the plaintiff will be from the portion situated at Gagribal road Srinagar. The plaintiff will

not be entitled to any share in building property mentioned in the plaint. The award is therefore submitted for further necessary action. Notice of

submitting the award has been given to learned Counsel to day,

The award thereafter appears to have been made rule of the court, by this Court (by the Bench presided over by the then Justice Sh. K.K. Gupta)

on 21.9.1985 after hearing the counsel for parties thread bear in following terms:

I have perused the award. It does not suffer from any illegality or irregularity. As such it is made rule of the court. Let a decree in terms of the

award follow

And thereafter the decree appears to have been drawn as follows:

In the above titled COS a decree in terms of the award is passed as under:

Two kanals and five marlas of land situated at Buchwara, Srinagar are awarded to Nabla Banoo which is at present in possession of defendants

Ghulam Ali, Ghulam Mohammad, Mohammad Amin and Nazir Ahmad shown as mark ""D"" in the report EXD4 of the Commissioners report

marked as EXD5. This share of the plaintiff will be from, the portion situated at Gagribal road, Srinagar. The plaintiff shall not be entitled to any

share in building property mentioned in the plaint.

The said judgment/decree appears to have been appealed against by both parties through CIA ""No. 17 of 1985 purporting to have been filed by

present petitioner and CIA No. 97 of 1985 filed by the respondent Ghulam Ali. Both appear to have been disposed of by a Division Bench of this

Court vide order dated: 12.8.1999 in following terms:

We have found that the parties failed to file objections against the award before the Single Judge resulting in dismissal of their applications. ""No

evidence was led in support of their case, with the result the Single Judge had no option but to make award rule of the court. This apart, Section

17 of the Arbitration Act makes it incumbent to prefer appeal for setting aside the award or remit the same to the arbitrator for consideration.

Therefore, what emerged out of these appeals is that there is no merit in both of them and the same are dismissed.

With that concluded the first round of substantial litigation after covering 31 years of the parties in this Court.

After dismissal of both the appeals and conclusion of the litigation as aforesaid the petitioner naturally sought execution of the judgment/decree

purporting to have been passed by this Court in confirmation of the arbitration award through and execution petition No. 3 of 2000 in this Court

which was vide interim order dated: 21.01.2001 transferred to the court of Pr. District Judge, Srinagar and received there on 9.2.2002 where the

proceedings commenced. Perusal of the execution application reveals that after giving details of the final judgments/decree the petitioner sought

execution thereof by delivery of possession of land measuring 2 kanals and five marlas as described in the arbitration award aforesaid to be

followed by an entry in the revenue records accordingly which was objected to by others side inter alia on the ground that the valuation was not

maintainable delivery of possession of the land mentioned therein as no survey numbers had been mentioned and secondly that the award did not

satisfy requirement of Or, 21 Rule 12 CPC and as such the decree was unexecutable under Order 21 Rule 35 CPC as also prayer for execution

was time barred. Finally the Court disposed of the execution proceedings in following terms:

Heard counsel for parties at length and perused the whole file including the main file. A perusal of the decree sheet framed by Hon'ble High Court

on 21.9.1985 shows that the decree is not of possession but only the land mentioned in the decree has been awarded to the present

applicant/plaintiff while form of decree sheet is such that it can not be executed by delivery of possession at all in view of the settled law that where

a party wants to get possession under a decree, the decree must be one where delivery of possession of Immovable property has been ordered

not merely an affirmation of plaintiffs right. The present decree is neither for possession nor for partition of property as prayed for by plaintiff in the

main suit thus same cannot be executed in the present form. The present application, therefore, is not maintainable. It is, therefore, dismissed. In

view of this main ground there is no need to go to other grounds raised by the judgment debtors. File be consigned to records.

And thus ended the plaintiffs around 40 years long battle for her share in the property.

Aggrieved by aforesaid order of executing court the petitioner assails it through this revision petition on the ground that learned executing court

was wrong in fact and law while concluding that the decree was not executable because the admitted case of the parties being the property was

held by defendants in joint possession with plaintiff, as co-owner she had right of joint possession over the property and as such there was no need

of a separate direction for delivery of possession and as such the award and decree passed was not appreciated by the court below in proper

perspective. During course of submissions while petitioners counsel has reiterated and further elucidated the contents of revision petition learned

Counsel for respondent has defended impugned judgment of executing court by stating that the same was well placed on fact and law because the

decree under execution was purely declaratory and the executing court could not travel beyond that as petitioner/plaintiff was disabled from

seeking execution thereof by the possession of decretal land.

I have heard learned Counsel and considered the matter. In view of the contents of revision petition, submissions made at bar and substance of

the execution court's impugned order, the question that arises for determination is whether in given circumstances the decree passed in the matter

by this Court on basis of the award of sole arbitrator is executable to the point of delivering possession of land mentioned therein to the

petitioner/plaintiff as prayed for by her. Incidentally a straight answer in ""yes or no"" does not appear to be handy because it involves the

interpretation of the decree and award forming the substratum thereof alongwith an objective appreciation of circumstances attending the whole

matter. Needless to say that for effective appreciate. of the full import of decree the terms thereof expressions and attending circumstances would

have to be considered and then only the executability or otherwise of the decree can be opined upon.

Accordingly before anything else it would be appropriate to notice as already said that petitioner/plaintiff had instituted the suit against

defendants with an express prayer for partition of the property by metes and bounds between her and them to the extent of her share which

appears to have been contested by respondents/defendants mainly by denying her title to seek such partition whereupon this Court framed as many

as 15 issues with issues No. 8 to 15 reflecting the substance of dispute which are reproduced herein below;

Is the plaintiff in possession of any part of the suit property? OPP

In case issue No. 1 is not proved, what is its effect on the suit? OPP

In the suit of the plaintiff not cognizable by the Civil Court in regard to agricultural land? OPD

Has not the suit been valued correctly for the purpose of court fee and jurisdiction, if so what should be the correct valuation ?OPD

Is the suit of the plaintiff barred by limitation? OPD

Is a notice u/s 80 CPC necessary to have been issued against the defendant No. 15, if so why? OPD

Has not the plaintiff impleaded all the necessary parties in the suit; if so what is its effect on the suit? OPD.

In the suit of the plaintiff not cognizable by the Civil Court in regard to agricultural land? OPD

Has not the suit been valued correctly for the purpose of court fee and jurisdiction, if so what should be the correct valuation ?OPD

Is the suit of the plaintiff barred by limitation? OPD

Is a notice u/s 80 CPC necessary to have been issued against the defendant No. 15, if so why? OPD

Has not the plaintiff impleaded all the necessary parties in the suit; if so what is its effect on the suit? OPD

When the house mentioned I sub-Para (a) of Para 1 of the plaint admittedly belonged to Samad Bhat, the common ancestor of the parties, did

his three sons afterwards sell the same to Ismail Bhat, vendee and could the three sons of Samad Bhat alienate the suit in absence of the other of

Samad Bhat ?OPD

Was the land mentioned in sub-Para of 1) of the plaint belonging to Samad Bhat, partitioned among his heirs after his death, if so what portions

fell to the share of each? OPD

Did the heirs of Samad Bhat sell huge areas from the land mentioned in Para 9 in favour of various persons; if so what is its effect on the claim

of the plaintiff ?OPD

Did Ahad Bhat manage the property of Noora Bhat after the death of the later during the minority of the children of Noora Bhat, deceased ?

OPD

Did Ahad Bhat, as head of the family, by selling the joint property of his own and of Noora Bhat purchase and sell various plots with joint

funds and money and thereby get enough money which was utilized in acquisition and construction of property as described in sub-paras of Para 4

of the plaintiff? OPD

Was the plaintiff and the heir of Mujid Bhat and the defendant Badshah Banoo receiving rent and usufructs of the property mentioned in Issue

No. 12, but she is now being deprived of the same for the last three years by defendants 1 to 4? OPD

What is the property that-is now liable to be partitioned and who are the persons found entitled to the suit property? OPP

To what relief the plaintiff is entitled to? OPP

Alongwith issues it would be apt to notice the order referring the matter to arbitrator which runs as follows:

S.L. Koul

M/s J.N. Bhan and S.P. Vohra

Learned Counsel for parties present. The parties agreed to the appointment of Syed Mustafa Rizvi, Mobile Magistrate, Srinagar as an arbitrator in

this case. An application has been made in this behalf today. Statements of learned Counsel for parties have been recorded to this effect. The case

is, therefore, referred to the arbitration of Syed Mustafa Rizvi, Mobile Magistrate, Srinagar who will submit his award within four months....

Thus not a particular limb or aspect thereof, but the entire case as pending before the court, alongwith claims and counter claims of the parties was

referred to the sole arbitrator thus who as already said herein adopted the issues framed earlier as points for determination it, therefore, follows that

the whole case which essentially contained of plaintiffs claim to her share of 1/2 in the disputed land through partition substance whereof alongwith

that of the case set up respondents/defendants was reflected in above quoted issues which were verbatim adopted by the arbitrator as points for

determination and as such constituted the reference in terms whereof was considered by the arbitrator and not any particular facet thereof, or any

specific claim or set of claims or set of claims in particular. The entire case before the court was referred, in view whereof it cannot perhaps be said

that any particular limb of the case like the one pertaining to declaration of the plaintiff/petitioner's rights, or her status on relation to the land under

reference only was considered. All these aspects with her claim of possession to the extent of her share by partitioned were wholly referred

alongwith those other features reflected in the gamut of issues adopted by arbitrator as points of ""reference and as such his award will have to be

read as pertaining to the whole gamut of controversy and not only a particular aspect thereof.

In that backdrop let me now advert to the award as passed by arbitrator which opens thus:

In a suit of partition of moveable and Immovable property between the parties pending in the High court of J&K, Srinagar I was appointed as

arbitrator. During arbitration proceedings which continued before me for number of years all efforts were directed towards bringing the parties to

some sort of compromise acceptable to all. It was for this reason that the proceedings dragged on and remained pending for number of years. But

I report with regret that the parties failed to compromise which would have been acceptable to both sides....

And continued as under:

During course of proceedings two witnesses of the defendants 1 to 7 namely Habibullah and Kh. Ahmad Ali Girdawar were appointed

commissioners and"" were directed to go on spot and report about the actual situation prevailing there. Mr. Ahmad Ali was asked to measure the

concerned piece of land and report to the arbitrator as to how much land out of the suit property was in actual possession of defendants 1 to 7 Mr.

Ahmad Ali submitted his report which is EXPW4 on the file. He has also prepared and produced a site plan which is EXD5.

Proceeding ahead to sum up the dispute existing between the parries the learned arbitrator on page 2 of his award observed thus:

The dispute between the parties relates to the estate left behind by one Samad Bhat the common ancestor of plaintiff Nabla Banoo and defendants.

According to genealogical table given by her in the plaint she is the daughter of Majid Bhat who was grand son of Samad Bhat. Defendants 1 to 7

are the sons of Samad Bhat, the father of Majid Bhat his son was a minor. Majid Bhat had mother Mst. Sara the widow after death of Noora

Bhat, was taken in marriage by Ahad Bhat uncle of minor, Defendants 1 to 7 were born in his marriage with Mst. Sara. It is alleged by the plaintiff

that her father Majid Bhat continued to live with Ahad Bhat even after the second marriage of her mother with Ahad Bhat. The estate of Noora

Bhat also came to be managed by Ahad Bhat during minority of the, father of plaintiff. The property claimed to be joint between the parties mainly

comprised of agricultural land measuring 123 kanals and 15 marlas and also a few small houses. It was the admitted case of parties that this

agricultural land belongs to the common ancestor namely Samad Bhat. When Samad Bhat died he left behind six sons. The land thus vested in

these six sons in equal shares. Noora Bhat the grant father of the plaintiff also became entitled to l/6th of the whole land like other brothers. So

each brother including Noora Bhat came to inherit 20 kanals and 12.1/2 marlas. The father of defendants 1 to 7 also got the same extent of land. It

is alleged that Ahad Bhat the father of defendants 1 to. 7 besides the land which fell to his share from the property of his father purchased 20

kanals and 20 marlas of land from his brother namely Nabir Bhat etc. The total land which came to be owned and was thus in the proprietorship of

Ahad Bhat came to be 44 kanals and 4.1/2 marlas. It is admitted by defendants 1 to 7 that out of this extent of land Ahad Bhat deceased, through

their common ancestor disposed of 36 kanals and 4 marlas leaving a balance of 3 kanals and 3.1/2 sirsaies. It appears that Ahad Bhat sold some

piece of land belonging to Majid Bhat when he was still a minor. The case of the plaintiff was that such sales were executed by Ahad Bhat without

obtaining permission from the concerned quarters and also because that such sales were affected without any legal requirements for the same.

Thereafter the learned Arbitrator proceeded to discuss the materials and evidence on record including the report furnished by appointed

Commissioner as aforesaid and accordingly after considering all these, passed the award already quoted hereinabove. While awarding 2 kanals

and 5 marlas of land to petitioner/plaintiff the learned Arbitrator identified the same as Mark ""D"" in the Commissioner's report EXD4/EXD5 and

also clarified that this share would be from the portion situated at Gagribal road, Srinagar. In view of the mention of these marks in the award it

would be appropriate to quote the relevant portions from the Commissioners report mentioned therein. As per report mark ""D"" on the site plan

appended therewith coloured in yellow reflects 7 kanals 7 marlas and 59 feet of land from Survey No. 387/min vacant at the time of inspection

with a demolished bungalow and in possession of Ghulam Ali and others, sons of Aruk Bhat. In the appended site plan the land mentioned as mark

DM has been separately demarcated with its measurement given as 112ft and 6 inches on the eastern side, 138 feet 6 inches on western side. 53

feet on southern side connected with remaining portion of the total land reportedly in possession of defendants and 78 feet 6 inches on northern

side wherefrom it is shown to be linked with main Blueaward road leading to Nishat and Shalimar gardens by a strip of road and is very clearly

identifiable. Accordingly with Commissioners report and the map aforesaid, learned Arbitrator appears to have awarded plaintiff 2 kanals and 5

marlas of land identified as aforesaid and shown to have been in possession of the defendants and that being so it cannot perhaps be said that the

awarded land was not adequately identifiable. On the contrary its identity appears with more than clear with four distinct features attending it in

terms of the award and Commissioners report/site plan. First, that it was a separate patch of land under survey No. 387/min separately

demarcated as such in the Commissioners site plan, secondly that it was located on the link road leading to main Blueward road, thirdly it

comprises of 2 kanals and 5 marlas of land with given measurement on all sides and fourthly that it was a vacant piece of land with a demolished

bungalow and a shop therein. With all these features set forth very clearly, that the land, awarded by Arbitrator to the plaintiff/petitioner was quite,

identifiable with a considerable amount of certainty.

That brings me to assess the import of award as passed by learned arbitrator that forms the basis of decree after it became rule of the court,

excitability whereof was the question before executing court, who as already said opined that it was not executable. Before proceeding ahead it

would be appropriate to notice that the learned Executing Court while opining as such observed that perusal of the file reveled that decree was not

of possession and the land mentioned therein has simply been declared to be applicant/plaintiff share, because of the form of decree sheet which

was such that it cannot be executed at all by delivering possession of the land and also added that in view of settled law for execution to get

possession, the contending patty must show that the decree was one for possession and not merely an affirmation of his right and accordingly

concluded by saying that the decree was neither for possession nor for partition and could not be executed in its present form. In view of aforesaid

finding of the trial court and of course submissions made at bar on behalf of respondents the question that would emerge is whether or not the

decree in question did contain an element of delivery of possession in favour of petitioner. As already said in order to understand the import of the

decree and its exceptability as such the entire gamut of proceedings including the terms of reference, consideration accorded by the arbitrator and

general circumstances of the case alongwith the sequence of events and various features attending the matter will have to be kept in mind while

assessing the import of the decree under reference.

In first instance and in light of the reference made what appears to have been referred to the arbitrator was the whole case wherein plaintiff

among other things sought partition and possession of suit property to the extent of her share. Secondly that arbitrator adopted the issues framed

which reflected the petitioner's title to get possession of the property, as points of reference. Thirdly that while conducting proceedings in the matter

he not only came to a conclusion regarding respective shares of the parties in the land under reference but he also had specific parcel of land

measured on spot with a view to find out as to who was in possession of how much. Fourthly the arbitrator had a patch of land measuring 2 kanals

5 marlas segregated and separately measured with its full description to identify the same for finally awarding it to the plaintiff/petitioner. In this

circumstantial backdrop the expression ""award"" as used by the arbitrator does not appear to be limited to a mere acknowledgement of petitioner's

title alone and conveys something more. Let me elaborate.

To start with it would be useful to again quot the precise line from the award ""I award to the plaintiff 2 kanals and 5 marlas...."" It is quite

significant that instead of saying that ""I declare plaintiff entitled to..."" which would only imply declaration of her right share, learned arbitrator chose

to use the expression ""I award...,"" which, as distinct from a mere declaratory expression, specifies the grant of land mentioned therein to the

plaintiff which inherently carries an element of the delivery of possession. Thus with the given context and the grammatic sense in which the

expression "" award"" has been used by learned arbitrator it conveys grant and is an order to be given,/assigned by judicial determination as

distinguishable from merely allowing. Thus the award means giving/assigning the 2 kanals and 5 marlas of land mentioned therein to

petitioner/plaintiff as has been further clarified in decree sheet by saying that ""this share of the plaintiff will be from the portion of land situated at

Gagribal road and that the plaintiff would not be entitled to any other share from the land mentioned in the award"". In that view of the matter the

element of delivery of possession in favour of petitioner/plaintiff appears to be explicit in the award which as already said had been made co

dispose of petitioners case for seeking partition of her share of land in view whereof it cannot perhaps be argued that the award merely mentioned

the share that petitioner could have from the property. That she was a co-owner/co-sharer in the property under reference has not been denied

expressly at any stage by any of the parties and whatever objection taken to the substance and form of the award have been brushed aside by this

Court while confirming the same as a rule of the court which was later up-held by the appellate bench during disposal of cross appeals purporting

to have been filed by respective parties against the same. In addition thereto in view of the circumstances and the consequent developments

mentioned here-in above the very appointment of arbitrator by this Court in the matter appears to have been, as always is, aimed at finally settling

the dispute between the parties and not merely for theoretic determination of their respective rights to lay foundation for further litigation.

If that be deemed to have been the case the entire arbitration process would loose its essence and because a meaningless extra procedural

exercise merely resulting in wastage of time, which can't perhaps be countenanced. After all by appointment of an arbitrator to settle the

controversy this Court would not have meant share abdication of its power to declare rights of the parties to the arbitrator who not only

ascertained petitioner/plaintiffs right in the suit land but also awarded to her and for carrying that into effect, a slight distinction is required to be

made between a decree based on arbitral award and the one passed after litigation between the parties. While former would signify a settlement of

the matter in terms thereof the later would have to be restricted in its import strictly to the meaning conveyed by the words and expressions used

therein. In other wards, therefore, while a decree passed on an award has to be interpreted in view of the reference and questions

considered/determined by the arbitrator, the approach adopted by him and the ultimate settlement that he arrived at, the same may not be that

relevant in case of a decree passed after litigation between conflicting parties. Accordingly it would not be correct to say that the decree as based

on the award was merely declaratory and hence not executable. Before concluding this part it would, however, be appropriate to quote from a

Supreme Court judgment passed in Parkash Chand Khurana, etc. Vs. Harnam Singh and Others, wherein the respondent had installed a factory

on a particular parcel of allotted land and sold it to the appellants where after dispute arose between them which was referred to arbitrator whose

award became rule of the court., one of the terms being, that the appellants were to pay certain amount of money to the board for discharging the

liability that respondent had earlier contracted failing which they would deliver the possession to other side who sought execution of the award

/decree by seeking possession of the factory and argument appears to have been raised that the award being merely declaratory in nature declaring

rights of the parties could not be executed while considering the Hon'ble Apex Court in Para 18 of the judgment was pleased to observe as under:

...We are unable to appreciate how this clause makes the award merely declaratory. It is never a pre-condition of the excutability of a decree that

it must provide expressly that the party entitled to a relief under it must file an execution, application for obtaining that relief. The tenor of the award

shows the arbitrator did not intend merely to declare the rights of the parties. It is clear intendment of the award that if the appellants defaulted

discharging their obligations the award, the respondents would be entitled to apply for obtaining possession"".

In the instant case also as would be evidenced from circumstances catalogued above and the sequence of events given together with the language

of the award which ultimately become rule of the court that the learned arbitrator who was no lesser a person than a sitting Judge of this Court did

not simply intend to merely declare petitioner/plaintiffs right with reference to particular parcel of land under reference but is sufficiently shown to

have intended handing over of the parcel of land measuring 2 kanals and 5 marlas to her by using the positive expression "" I award 2 kanals and 5

marlas...

Being a sitting Judge of the court the learned arbitrator could not be said to have been oblivious of the import and implication of the expression and

words he was using in the award which were confirmed as rule of the court by another sitting Judge were accepted without any change in the form

substance whatever. Not only that the confirmation of the award as rule of the court was further confirmed by the appellate bench of this Court

with its given expressions and sequence of the events attending the same where after it would almost amount to denude the award and the

consequent decree of its true import if one says that it never meant delivery of the land under reference to the plaintiff and was merely a declaration

of her right even after 40 years of strenuous litigation. In that view of the matter I feel that the learned trial judge and the executing court has grossly

erred in coming to the conclusion that decree under reference was not executable and as such inflicted harsh damage upon plaintiff/petitioner who

has been prosecuting her case for decades together.

Before concluding it would be appropriate to address two remaining elements of respondents' argument which are stated to have been urged

by them, before the trial court and not addressed for disposal of the matter. First pertaining to ion of limitation that is stated to have crept in

because of the delayed initiation of the execution proceedings and secondly certain procedural defects alleged to be occurring in the decree passed

by this Court previously. In so far as the defects whatever occurring in the decree are concerned the argument does not appear to be available to

any of the parties because of the dismissal of their appeals by the Division Bench which finally confirms the decree and seals all questions those

might be raised against any alleged illegality or procedural irregularity allegedly existing therein whatsoever. Similarly as regards the question of

limitation the objection taken appears to be quite unfounded for the simple reason that admittedly the matter has been in litigation till disposal of the

appeals by the appellate bench which came as late as in 1995 immediately where after the petitioner appears to have instituted execution petition.

None of these grounds also, therefore, even if considered would improve respondents cost in any manner whatsoever.

Accordingly for what has been stated above the revision petition is allowed and the impugned order is quashed with a direction to the

executing court to execute the decree forthwith so that the petitioner/plaintiff gets the fruits of her successful litigation which has been going on

between the parties for last 40 years. The executing court is expected to appreciate that the litigation in whatever form is meant to finally settle the

disputes between mortals beings and should not be allowed to be immortalized to the point of eternity which needless to say dilutes the public

confidence otherwise vesting in the courts of law. The parties through their counsel are directed to appear before the court below on 16.03.2008.

On receipt of the file the learned trial judge shall immediately start execution in terms of the award and decree passed. Should he feel that

respondents/judgment debtors are trying to delay the execution further on any pretext whatsoever he would be free to impose day to day running

costs upon them to coercive them into performance of the decreed 13.

As costs of litigation the petitioner is liable to pay Rs. 20,000/- to her for having dragged her to litigation for more than four decades. The

Petition stands disposed of alongwith connected CMPs.