CRP/153/2007 of Y.Lakshmamma, Vs G.Thyagaraju, on 31 December 2010

ORDER:

Whether the period spent by the decree holder before the appellateCourt where a limited stay was granted would save the period of limitation forthe execution of the decree under Article 135 of the Limitation Act, in view ofSection 15 of the Limitation Act is the question of law arises in this revision.

2. The revision petitioners are the defendants in O.S.No.548 of1995 on the file of the Principal Junior Civil Judge, Kurnool.The respondent herein is the decree holder in the suit. I shall refer to theparties as they are arrayed in O.S.No.548 of 1995.

3. The plaintiff filed the suit in O.S.No.548 of 1995 against thedefendants seeking for a mandatory injunction for the removal of theconstructions on the public road.The defendants in their turn filedO.S.No.283 of 1995 on the file of the same Court for a simple perpetualinjunction.Both the suits were clubbed and tried jointly by the trial Court.Through a common judgment dated 05.04.1999, O.S.No.548 of 1995 wasdecreed and O.S.No.283 of 1995 was dismissed.The defendants preferredA.S.No.51 of 1999 from the judgment in O.S.No.548 of 1995 and thedefendants also preferred A.S.No.52 of 1999 from the judgment inO.S.No.283 of 1995. Again through a common judgment dated 25.02.2001, both the appeals were dismissed.Curiously, the defendants preferredSecond Appeal No.414 of 2001 from the judgment in A.S.No.52 of 1999.NoSecond Appeal was preferred from the judgment in A.S.No.51 of 1999.Thus,the judgment and decree in O.S.No.548 of 1995 as confirmed by thejudgment in A.S.No.51 of 1999 has become final.

4. So far as O.S.No.283 of 1995 is concerned, as the dismissal ofthe same was confirmed through the judgment and decree in A.S.No.52 of1999, a Second Appeal was preferred in S.A.No.414 of 2001.The HighCourt was pleased to direct both the parties to maintain status quo, throughthe order dated 24.06.2001 in the Second Appeal No.414 of 2001.Ultimately, the Second Appeal No.414 of 2001 was dismissed on 15.03.2004primarily on the technical ground that the Second Appeal ought to be againstthe judgments and decrees in A.S.No.51 of 1999 as well as A.S.No.52 of1999 and that the Second Appeal from the judgment in A.S.No.52 of 1999alone is not maintainable.

5. Thereafter, E.P.No.462 of 2004 was laid by the plaintiff on28.06.2004.The judgment debtors raised an objection that the executionpetition was not maintainable on the ground that the decree was executablewithin three years under Article 135 of the Limitation Act and whether countedfrom the date of decree before the trial Court which was 05.04.1999 orcounted from the date of decree before the appellate Court which was26.02.2001, the execution petition was laid beyond three years and that theexecution petition consequently is not maintainable.The execution Courtheld that the execution petition was within time.The objection raised by thedefendants was overruled. The execution Court, through the impugned orderdated 15.09.2005 in E.P.No.462 of 2004, directed for the removal of theconstruction.Aggrieved by the same, the defendants preferredC.R.P.No.5057 of 2005.The High Court was pleased to allow the revision.The order in E.P. No.462 of 2002 was set aside.The execution petition wasremanded to the execution Court for fresh consideration.Thereafter, theimpugned orders were passed by the execution Court.The defendants onceagain preferred the present revision impugning the orders of the executionCourt.

6. The point for consideration is whether the execution petition iswithin time.

6. The point for consideration is whether the execution petition iswithin time.

7. O.S.No.548 of 1995 was a suit for mandatory injunction.UnderArticle 135 of the Limitation Act, the decree in a mandatory injunction suit isliable to be executed within three years.The decree was passed inO.S.No.548 of 1995 on 05.04.1999.A.S.No.51 of 1999 was preferredtherefrom before the learned III Additional District Judge, Kurnool.Thelearned III Additional District Judge, Kurnool dismissed A.S.No.51 of 1999,through the judgment dated 25.02.2001.The judgment in O.S.No.548 of1995 and the judgment in A.S.No.51 of 1999 indeed are common judgments.O.S.No.283 of 1995 was disposed of along with O.S.No.548 of 1995, throughthe common judgment dated 05.04.1999.A.S.No.52 of 1999 was disposedof, through the common judgment along with A.S.No.51 of 1999. The secondappeal was preferred from the judgment in A.S.No.52 of 1999 only.Nosecond appeal was preferred from the judgement in A.S.No.51 of 1999.These are the admitted facts.

8. When E.P.No.462 of 2004 was laid to execute the degree inO.S.No.548 of 1995, as confirmed in A.S.No.51 of 1999, the defendantsresisted the execution petition on the ground that the same is barred bylimitation. It may be recalled that O.S.No.548 of 1995 was decreed on05.04.1999.A.S.No.51 of 1999 was dismissed on 25.02.2001.Theexecution petition was laid on 28.06.2004.Either from the date of the decreein O.S.No.548 of 1995 which was 15.04.1999 or from the date of thejudgment in the appeal in A.S.No.51 of 1999, which was 25.02.2001, threeyears elapsed by the date of E.P.No.462 of 2004 dated 28.06.2004. UnderArticle 135 of the Limitation Act, a decree for the execution of a mandatoryinjunction can be laid within three years only from the date of the decree.

9. Sri Shafath Ahmed Khan, learned counsel for the revisionpetitioners/judgment debtors would contend that the execution petition is notmaintainable as it was filed beyond three years from the date of either thejudgment of the trial Court or the judgment of the appellate Court.On theother hand, it is the contention of Sri K. Sriram, learned counsel for the respondent/decree holder that the execution of the decree was stayed inS.A.No.414 of 2001 and that as the second appeal was disposed of on15.03.2004, the period of limitation shall be reckoned from 15.03.2004 only.His contention is that the period from the date of the decree in O.S.No.548 of1995 till the disposal of S.A.No.414 of 2001 on 15.03.2001, limitation to laythe execution petition is suspended in view of Section 15 of the LimitationAct.

10. The controversy is only in this regard.According to the learnedcounsel for the plaintiff/decree holder, when status quo was granted inS.A.No.414 of 2001 on 24.06.2001, the plaintiff could not move the executionpetition and that consequently the plaintiff was protected u/s.15 of theLimitation Act. The learned counsel for the defendants/judgment debtorsurged that Section 15 of the Limitation Act would not apply for the presentcase, where S.A.No.414 of 2001 was not from the judgment and decree inA.S.No.51 of 1999 which in turn was from O.S.No.548 of 1995 and that whenthe plaintiff proposed to execute the decree in O.S.No.548 of 1995 orA.S.No.51 of 1999, there was no stay of the execution of the same.According to him, the date of commencement of limitation for filing theexecution petition was 05.04.1991 on which date O.S.No.548 of 1995 wasdecreed or at the outer most on 25.02.2001 when A.S.No.51 of 1999 arisingfrom judgment in O.S.No.548 of 1995 was dismissed and that in either event,the execution petition laid beyond three years cannot be executed as thesame is barred by limitation.Consequently, the real question is whether thestay granted in S.A.No.414 of 2001 operates as stay for the execution of thedecrees in O.S.No.548 of1995 and A.S.No.51 of 1999.If the stay inS.A.No.414 of 2001 has no relevance through the judgment and decree inA.S.No.548 of 1995 and A.S.No.51 of 1999, the execution petition laid by theplaintiff in E.P.No.462 of 2004 would be barred by limitation.If the periodduring which the stay granted in S.A.No.414 of 2001 was in operation isexcluded from the computation of the period of limitation, E.P.No.462 of 2004would be well within time.Hence, the limited question is whether the stay inS.A.No.414 of 2001 would operate as stay of the execution of the decree inO.S.No.548 of 2005.

11. The learned counsel for the defendants pointed out that thestatus quo granted in S.A.No.414 of 2001 on 24.06.2001 was in relation toA.S.No.52 of 1999 arising from O.S.No.283 of 1995 and that it had nothing todo with the decree in O.S.No.548 of 1995, as confirmed in A.S.No.52 of1999.He, therefore, contended that so far as the decree in O.S.No.548 of1995 is concerned, there was no stay at least after the disposal of A.S.No.51of 1999 on 25.02.2001 and that the plaintiff ought to have preferred executionpetition to enforce the decree in O.S.No.548 of 1995 within three years from25.02.2001 when A.S.No.51 of 1999 was dismissed.The learned counsel forthe decree holder/plaintiff contended that indeed the High Court grantedstatus quo in A.S.No.414 of 2001 and that the same, however, would operateas a partial and limited stay for the execution of the decree in O.S.No.548 of1995 and A.S.No.51 of 1999.He submitted that even a limited stay for theexecution would attract Section 15 of the Limitation Act protecting the plaintifffrom the rigor of limitation.

12. The learned counsel for the plaintiff placed reliance uponAnandilal v. Ram Narain[1]in support of his contention.The Supreme Courtconsidered that the word ‘execution’ in Section 15 (1) of the Limitation Actembraces all the appropriate means by which a decree is enforced includingall the processes and proceedings in the aid of or supplemental to theexecution.The Court pointed out that there was no rationale for adopting anarrow and restricted construction on a beneficent provision like Section 15of the Limitation Act.Through the liberal interpretation, the Supreme Courtheld that Section 15 (1) of the Limitation Act protects a decree holder whetherthe stay granted was a complete and absolute stay or a partial stay.TheCourt viewed that if stay is granted for the execution of a decree in one of themodes, it shall be treated that the stay is in force protecting the decree holderu/s.15 of the Limitation At, even though, the decree holder is trying to executethe decree through a mode of execution for which there is no stay.This isthe point on which the learned counsel for the decree holder is harping upon.It is his claim that where S.A.No.414 of 2001 prevented the decree holderfrom executing the decree through a status quo order, the plaintiff wasprotected by Section 15 of the Limitation Act.

13. On the other hand, the contention of the learned counsel for thedefendants/judgment debtors is that the stay of the judgment and decree inO.S.No.283 of 1995 and A.S.No.52 of 1999 are not tantamount to stay of theexecution of the decree and judgment in O.S.No.548 of 1995, as confirmed inA.S.No.51 of 1999 and that the decision of the Supreme Court in Anandilal’scase (supra) has no relevance for the present circumstances.

14. Sri Shafath Ahmed Khan, learned counsel, while advancinghis submissions on behalf of the revision petitioners/defendants/ judgmentdebtors placed reliance on Mohan v. Munshi[[2]]Dr. B.S. Chauhan, J, as hethen was considered that mere pendency of an appeal would not permit thedecree holder to sleep over the matter and to raise only after the decision ofthe appeal. He referred to Order 41 Rule 5 C.P.C. and held that an appealifso facto would not amount to stay of the execution of the decree.

15. The learned counsel for the respondent/decree holder contendedthat this decision has no relevance where the second appeal arose from oneof the common judgments in the first appeal which in turn arose from acommon judgment of the trial Court and that in such an event, the stay of thejudgment and decree in O.S.No.283 of 1995 and A.S.No.52 of 1999 wouldamount to partial stay and would consequently suspend the period oflimitation under Section 15 of the Limitation Act in view of Anandilal.

16. To counter this contention of the learned counsel for thedecree holder, the learned counsel for the judgment debtors referred to adecision in W.B. Essential Commodities Supply Corpn. V. Swadesh Agro Farming & Storage Pvt. Ltd.,[[3]]. It was observed by the Supreme Court in thatcase that a decree holder would not be entitled to the benefit of the exclusionof the time taken for obtaining the certified copy of the decree. The Court heldthat the limitation period of 12 years under Article 136 of the Limitation Actwould commence from the date of pronouncement of the judgment and noteven from the date on which the decree was drawn and signed by the Court.

17. It is the contention of the learned counsel for the judgmentdebtors that where the decree sought to be executed is the decree in

O.S.No.548 of 1995 as confirmed in A.S.No.51 of 1999 and where the samewas not stayed at any point of time, the period of limitation in fact commencedfrom the date of the judgment in O.S.No.548 of 1995 and that the period oflimitation consequently commenced from 05.04.1999. He also submitted thatin the alternative, assuming that as appeal from the judgment and decree inO.S.No.548 of 1995 was pending, the period of limitation commences fromthe date of the judgment in A.S.No.51 of 1999 and that as A.S.No.51 of 1999along with A.S.No.52 of 1999 was disposed of on 25.02.2001, the decreeholder ought to have taken execution within three years therefrom. Admittedly, where the execution petition was laid on 28.06.2004, it is thecase of the learned counsel for the judgment debtor that the executionpetition is barred by limitation and is liable to be dismissed.

18. It is the view of the Supreme Court in the last of the cases citedthat the period of limitation commenced from the date of judgment which issought to be executed, so along as there is no stay of the same. It may bepointed out that the decree holder is executing the decree in O.S.No.548 of1995, perhaps as confirmed in A.S.No.51 of 1999. The decree holderdefinitely was not executing the common decree in A.S.No.548 of 1995 andO.S.No.283 of 1995. There was no executable decree in O.S.No.283 of 1995and A.S.No.52 of 1999 nor in S.A.No.414 of 2001. The decree, which couldbe executed, is the decree in O.S.No.543 of 1995, which stood merge in thedecree of the appellate Court in A.S.No.51 of 1999.

19. As the decree in O.S.No.54 of 1995 and A.S.No.551 of 1999were more than three years prior to the date of the execution petition, theexecution petition is clearly barred by limitation. I, therefore, agree withthe contention of the learned counsel for the revision petitioners that theexecution petition is not maintainable.

The execution Court is erroneous in holding that the execution petition waswithin time. I, therefore, am constrained to set aside the impugned orderpassed by the execution Court. I hold that the execution petition laid by thedecree holder is beyond limitation and is, therefore, liable to be rejected. Theexecution petition is accordingly rejected.

No costs.

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K.G. SHANKAR, JDate:.12.2010Isn

[1]AIR 1984 SC 1383[2]2003 (1) CCC 390 (Raj.)[3](1999) 8 SCC 315