S. Kharak Singh vs Harbhajan Singh

Rajendra Nath Mittal, J.—This revision petition has been filed by Kharak Singh, judgment-debtor, against the order of the Subordinate Judge II Class, Hoshiarpur, dated February 23, 1977, whereby his objection petition has been dismissed.

Briefly the facts of the case are that a decree for possession by specific performance regarding the land in dispute on payment of Rs. 300/- in terms of the agreement between the parties was passed against Kharak Singh by the Subordinate Judge 1st Class, Hoshiarpur, on October 31, 1963. As appeal against that judgment and decree was dismissed by the District Judge, Hoshiarpur, on March 12, 1964. The decree holder filed an application for execution of the aforesaid decree. A notice of the application was given to the judgment-debtor who filed objections u/s 47 of the CPC inter alia pleading that the decree of the trial Court was not executable, that the application was not within time and that the decree dated June 27, 1973, between the parties operated as res judicata. On the pleadings of the parties the Court framed the following issues:--

Whether the decree of the trial Court under execution is executable ? OPDH.

X. Whether the execution application is not within time ? OP.

Whether the decree dated the 27th June, 1973, passed by the Court of Shri S.K. Dhir, Sub-Judge in favour of respondent against judgment debtor the applicant operates as resjudicata ? OPJD.

Relief.

The counsel for the judgment-debtor did not press issues Nos. 2 and 3 and consequently they were decided against the judgment-debtor. On issue No. 1 it held that the decree was executable on payment of Rs. 70/- as Rs. 230/- had already been paid by the decree-holder to the judgment debtor vide receipt Exhibit D.H.W. 1/1. The Court gave the decree-holder time to deposit Rs. 70/- upto March 1, 1977. Thus, it decided issue No. 1 in favour of the decree-holder. Consequently the objections of the judgment-debtor were dismissed. He went up in appeal before the District Judge, Hoshiarpur who dismissed the same holding that the appeal was not maintainable in view of the amendment in the Code of Civil Procedure. He has now come up in revision against the aforesaid order to this Court.

The first question that arises for determination is as to whether the decree of the Court for specific performance is executable. It may be relevant to state again that the Court passed a decree for possession by specific performance in favour of the decree-holder on payment of Rs. 300/-. It, however, did not fix any time for depositing the amount. The limitation for executing the decree is 12 years. Thus the decree holder was entitled to deposit the amount within the period, of limitation and execute the decree. The learned executing Court-after considering the evidence led by the parties came to the conclusion that the decree-holder had paid Rs. 230/- to the judgment-debtor (vide receipt Exhibit DHW 1/1) leaving a balance of Rs. 70/- towards him. He gave time to him to deposit the balance amount of Rs. 70/- upto March 1, 1977. The said amount, it is admitted before me has been deposited in the executing Court. Therefore, in my view the decree-holder is entitled to execute the decree. The learned counsel for the petitioner has not been able to show to me as to how the decree is not executable. I consequently affirm the finding of the executing Court on issue No. 1.

The second question that requires determination is whether the execution application is within time. It has been argued by the learned counsel for the petitioner that the decree holder is executing the decree of the trial Court which was passed on October 31, 1963. The learned counsel submits that the decree could be executed within three years, as the limitation of three years had been provided by the Limitation Act 1908. I regret my inability to accept the contention of the learned counsel. It is not disputed that an appeal was fled against the judgment and decree dated October 31, 1963 to the District Judge, Hoshiarpur, which was dismissed by him on March 12, 1964. This is an established principle of law that the decree of the trial Court merges in that of the appellate Court and after the passing of the decree by the appellate Court it is the decree of that Court which is executed. The decree holder is entitled to take limitation for execution from the date of decree of the appellate Court. On January 1, 1964, Indian Limitation Act, 1908 was repealed by the Limitation Act, 1963. By virtue of the Limitation Act of 1963 a period of 12 years was prescribed for executing the decree. Thus the decree-holder became entitled to execute his decree till March, 1976. The present execution application was filed by him somewhere in 1973. The application is therefore, clearly within limitation The contention of the learned counsel for the petitioner is, therefore, rejected.

For the reasons recorded above the revision petition fails and the same is dismissed with no order as to costs.