Bimal Kumar & Anr vs Shakuntala Debi & Ors

Bimal Kumar & Another ... Appellants

Versus

Shakuntala Debi & Others ...

Respondents

J U D G M E N T

Dipak Misra, J.

Leave granted.

2. In this appeal, the assail is to the order dated

19.9.2009 passed by the learned single Judge of Jharkhand

High Court at Ranchi in C.R. No. 53 of 2007 by which he

has dislodged the order dated 10.7.2006 passed by the

learned Sub-Judge (I), Ranchi, whereby he had dismissed

2

the Execution Case No. 8 of 2004 filed by the respondents

as being barred by limitation.

-

3. Filtering the unnecessary details, the facts which are

requisite to be frescoed for the purpose of disposal of the

present appeal are that one Kanilal Kasera filed a Partition

Suit No. 131 of 1962 against his father, Nanak Kasera, and

other brothers. The suit was compromised leaving aside

Kishori Lal Kasera, the father of the present appellants, and

a joint petition of compromise between the plaintiff and the

defendant Nos. 1, 2, 4 to 9 and 11 to 18 was filed. It is

worth noting that Kishori Lal Kasera had appeared in the

suit and filed the written statement but thereafter chose not

to contest.

4. The petition of compromise contained that the

defendant Nos. 1, 9, 11 and 12 had relinquished and given

up all their interests in item Nos. 3 and 8 of the suit

schedule of property, being Holding No. 285 of new holding

No. 509A of Ward No. II situated on portion of Municipal

Survey Plot No. 621 and Holding No. 431 of Ward No. 1

3

situated on Municipal Survey Plot No. 902, and further

declared that they had no claim or concern with any other

properties involved in the suit; that the business, namely,

"SEVEN BROTHERS STEEL FURNITURE WORKS", item 5 of

-

the schedule, belonged exclusively to the defendant No. 2,

Moti Lal Kasera, and neither the plaintiff nor any of the

other defendants either ever had or shall ever have any

claim or interest; and that one half of the house and

premises comprised in Municipal Holding No. 431, Ward No.

1, item 3 of the schedule, and half of Holding No. 509 A of

Ward II, situated on portion of M.S. Plot No. 631, item 2 of

the schedule, shall belong to the defendant No. 2 with all

the liabilities and outstanding dues and the plaintiff and the

other defendants shall have no liabilities or interest in the

said properties; and that the business carried on under the

name of `Chotanagpur Tin Works', item 6A of the schedule,

was the sole separate business of the defendant No. 5,

Prakash Kumar Kasera, and the plaintiff or the other

defendants had no claim on the said property.

4 5. The application further contained that the partition of

the house and premises comprised in Holding No. 431 of

Ward I, item 3 of the schedule, marked in green colour in

the exhibit, shall belong exclusively to the defendant no. 4,

Mohan Lal Kasera, and neither the plaintiff nor the other

defendants shall have any claim or interest; that the -

business of iron shop at Bazaar Tan Ranchi, item 6 (c) of

the schedule, was the separate and exclusive business of

the defendant No. 6, Surendra Lal Kasera, and none others

had any claim or interest and the portion of the building

and premises comprised in Municipal Holding No. 431 of

Ward No. I, item 3 of the schedule, marked in yellow colour,

shall also belong to the defendant No. 6 and no one else had

any claim or interest; that the portion of the building and

premises comprised in Municipal Holding No. 431 of Ward

No. I, item 3 of the schedule, marked in blue colour, and

one-half of the shop premises comprised in Holding No. 509

A over portion of M.S. Plot No. 621 being item No. 2 of the

schedule to the plaint shall exclusively belong to the

plaintiff and he shall have absolute right over the same.

5 6. That apart, the plaintiff had agreed to pay up all

outstanding dues of Bindrilal Agarwalla against the

defendant No. 1 and none of the defendants shall be liable

for the same.

7. It was also agreed upon that the House situated on

Holding 6 Ward II of the Ranchi Municipality being

comprised of Khata No. 71 plot No. 72 area 61 decimal and

-

plot No. 79 area 7= decimal total area measuring 14

decimal, being item No. 4 of the schedule and the house and

premises comprised of Holding No. 180 Ward III being

survey plot No. 92 area 0.30 Karies and Municipal Survey

Plot No. 92 area 0.063 Karies total area 0.093 Karies of

Hajamtolio, Ranchi being item No. 5 were separate and

exclusive properties of Smt. Rama Devi and shall belong

exclusively to the defendant No. 7, Srimati Rama Devi, the

widow of Hira Lal Kasera, and no one else shall have any

claim or concern in the said property; that the shop

premises being holding No. 509 B of Ward II of Ranchi

Municipality situated on portion of M.S. Plot No. 621 being

6

item No. 1 of the schedule and the house premises

comprised of Holding No. 133(g) of Ward II being item No. 8

and the properties comprised Holding No. 145 A of Ward No.

I measuring 6= decimals being plot No. 268 of Khata No. 34

of Village Konka, being item No. 9 of the schedule belonged

to the defendant No. 8, Sreemati Munitri Debi, wife of

Prakash Lal Kasera, the defendant No. 5, and none had any

claim or interest; that the house and the premises situated

at Madhukam, Ranchi comprised in Holding No. 318 of -

Ward I being item No. 10 of the schedule was the property of

the defendant No. 13, Shreemati Deojani Debi, wife of Moti

Lal Kasera, the defendant No. 2.

8. It was stipulated that the business and properties

mentioned in item Nos. 6(b) and 7 were erroneously

included in the suit.

9. Be it noted, in Clause (K) of the petition of compromise,

it was clearly stated as follows: -

"k) That the parties are in separate and

exclusive possession of the properties

respectively belonging to them and have

obtained separate and exclusive possession of

7

the properties allotted to their respective

shares."

10. The learned trial Judge being satisfied accepted the

petition of compromise and passed a compromise decree on

3.4.1964 treating Kishori Lal Kasera ex parte.

11. When the matter stood thus, the legal representatives

of Kishori Lal Kasera, the present appellants, initiated a

fresh partition suit No. 49 of 1973 on the ground that the

earlier decree was obtained by fraud. In the said suit, they

claimed 1/11th share of the property for themselves which -

was involved in the earlier suit being P.S. No. 131 of 1962.

The said suit was dismissed on 27th August, 1994. Being

dissatisfied with the said decision, Kishori Lal Kasera

preferred Title Appeal No. 109 of 1994 which was dismissed

for want of prosecution on 6.1.2004. At this juncture, the

respondents herein filed execution case No. 8 of 2004

seeking execution of the decree passed in P.S. No. 131 of

1962. Be it noted, in the meantime, Kishori Lal Kasera had

breathed his last and, therefore, the execution was levied

against the legal heirs, the appellants herein.

8 12. An objection was raised by the appellants that the

execution proceeding was barred by limitation and hence,

deserved to be dismissed. The learned Sub-Judge

dismissed the execution proceedings on the ground that it

was absolutely barred by limitation.

13. Aggrieved by the said order, the respondents preferred

C.R. No. 53 of 2007 under Section 115 of the Code of Civil

Procedure (for short `the CPC') and the learned single Judge

allowed the said Revision on the ground that the execution

case preferred by the revisionists was not barred by

limitation. For the said purpose, the learned single Judge -

placed reliance on the decision in Bharti Devi v. Fagu

Mahto1. The legal substantiality of the said order is the

subject-matter of challenge in this appeal.

14. We have heard Mr. Amboj Kumar Sinha, learned

counsel for the appellants, and Mr. S.S. Shamshery, learned

counsel for the respondents.

1 2009 (3) JLJR 90 : AIR 2010 Jhar 10

9

15. The two seminal and spinal issues that had emanated

before the executing court and the High Court and have also

spiralled to this Court are whether the decree passed by the

court of first instance on the basis of compromise had

become enforceable or it had the status of a preliminary

decree requiring completion of a final decree proceeding to

make it executable and whether the execution proceeding

was untenable being hit by the law of limitation.

16. We shall advert to the first issue first. On a perusal of

the tenor of the entire compromise application, we are of the

considered view that the parties to the compromise settled

the entire controversy. The defendant No. 3 who was the

predecessor-in-interest of the present appellants was not -

allotted any share. As is perceptible from the terms of the

compromise which formed a part of the decree, the parties

had conceded that they were in separate and exclusive

possession of the properties respectively belonging to them

and further had obtained separate and exclusive possession

of the properties allotted to their respective shares. Thus,

their respective shares and exclusive possession were

admitted on the basis of the said compromise petition and a

10

decree had been drawn up. The Court had taken note of the

contents of the compromise wherein it had been prayed that

the decree be passed in accordance with the terms of the

compromise. It is clearly evincible that the Court had

proceeded on the basis that it was finally disposing of the

suit in accordance with the terms set out in the compromise

petition. The factum of exclusive possession had also been

recorded in the application of compromise. It had been

clearly stated that parties have been put in separate

possession of the various immovable properties.

17. Quite apart from the above, in the counter affidavit

filed by the respondents, it is admitted that possession had

remained with the parties as per the allotment. It is -

profitable to reproduce the said portion of the counter

affidavit:-

"It is pertinent to mention here that the parties

who were allotted the share as per the decree

were stated to be in possession of their share

and it was written in the judgment that no

preliminary, final decree or execution was

required to be filed. Though Kishori Lal

Kasera had full knowledge of the compromise

decree but he did not challenge the decree

within the period of limitation therefore the

compromise decree became final and absolute

11

against all the parties, including Kishori Lal

Kasera."

18. Despite the aforesaid, a contention has been advanced

by the learned counsel for the respondents that in a suit for

partition, drawing up of a final decree is imperative. In this

context, we may usefully refer to the decision in

Rachakonda Venkat Rao And Others v. R. Satya Bai (D)

by L.R. And Another2 wherein it has been stated as

follows:-

"The compromise application does not contain

any clause regarding future course of action

which gives a clear indication that nothing was

left for future on the question of partition of

the joint family properties. The curtain had

been finally drawn."

After so stating, the Bench proceeded to observe as follows:-

"The decree as a matter of fact leaves nothing

for future. As noticed earlier in a preliminary

decree normally the court declares the shares

of the parties and specifies the properties to be

partitioned in the event of there being a

dispute about the properties to be partitioned.

After declaring the shares of the parties and

the properties to be partitioned, the Court

appoints a Commissioner to suggest mode of

partition in terms of O. XXVI, R. 13, C.P.C. A

2

AIR 2003 SC 3322 : 2003 7 SCC 452

12

perusal of Order XXVI, R. 13 C.P.C. shows that

it comes into operation after a preliminary

decree for partition has been passed. In the

present case, there was no preliminary decree

for partition and, therefore, R. 13 of O. XXVI

does not come into operation. If the plaintiffs

considered the decree dated 13th July, 1978 as

a preliminary decree, why did they wait to

move the application for final decree

proceedings for 13 years? The only answer is

that the plaintiffs knew and they always

believed that the 1978 decree was a final

decree for partition and it was only passage of

time and change in value of the properties

which was not up to their expectations that

drove plaintiffs to move such an application."

19. In Muzaffar Husain v. Sharafat Hussain3, it has

been held as follows:-

"We think the decree passed by the civil Court

should be treated as a final order for effecting

a partition. It is true that the decree was

passed on the basis of a compromise filed by

-

the parties, but the fact remains that it was

passed in a partition suit, and had the effect

of allotting a specific portion of the property to

the plaintiff as his share in the property. The

conclusion at which we have arrived is

supported by a decision of the Madras High

Court in Thiruvengadathamiah v.

Mungiah4"

3

AIR 1933 Oudh 562

4 13

20. In Raghubir Sahu v. Ajodhya Sahu5, the Division

Bench of Patna High Court had ruled thus: -

"In the present case, the decree was passed on

compromise. It was admitted that by the

compromise, the properties allotted to the

share of each party were clearly specified and

schedules of properties allotted to each were

appended to the compromise petition.

Therefore, no further inquiry was at all

necessary. In such circumstances, the decree

did not merely declare the rights of the several

parties interested in the properties but also

allotted the properties according to the

respective shares of each party. Therefore, it

was not a preliminary decree but it was the

final decree in the suit."

21. In Renu Devi v. Mahendra Singh and others6, the

effect of a compromise decree and allotment of shares in

pursuance of the said decree was dealt with. The two-

Judge Bench referred to the decisions in Raghubir Sahu v.

Ajodhya Sahu (supra) and Muzaffar Husain (supra) and -

(1912) ILR 35 Mad 26

5

AIR 1945 Pat 482

6

AIR 2003 SC 1608

14

opined that the law had been correctly stated in the said

authorities.

22. In the said case, after referring to CPC by Mulla, this

Court, while drawing a distinction between the preliminary

and the final decree, has stated that a preliminary decree

declares the rights or shares of the parties to the partition.

Once the shares have been declared and a further inquiry

still remains to be done for actually partitioning the

property and placing the parties in separate possession of

the divided property, then such inquiry shall be held and

pursuant to the result of further inquiry, a final decree shall

be passed. A preliminary decree is one which declares the

rights and liabilities of the parties leaving the actual result

to be worked out in further proceedings. Then, as a result

of the further inquiries conducted pursuant to the

preliminary decree, the rights of the parties are finally

determined and a decree is passed in accordance with such

determination, which is the final decree. Thus,

fundamentally, the distinction between preliminary and

final decree is that: a preliminary decree merely declares the

rights and shares of the parties and leaves room for some -

15 further inquiry to be held and conducted pursuant to the

directions made in the preliminary decree which inquiry

having been conducted and the rights of the parties finally

determined a decree incorporating such determination

needs to be drawn up which is the final decree.

23. Applying the principles laid down in the aforesaid

authorities, it is graphically clear that in the case at hand,

the parties entered into a compromise and clearly admitted

that they were in separate and exclusive possession of the

properties and the same had already been allotted to them.

It was also admitted that they were in possession of their

respective shares and, therefore, no final decree or

execution was required to be filed. It is demonstrable that

the compromise application does not contain any clause

regarding the future course of action. The parties were

absolutely conscious and rightly so, that their rights had

been fructified and their possession had been exclusively

determined. They were well aware that the decree was final

in nature as their shares were allotted and nothing

remained to be done by metes and bounds. Their rights

16

had attained finality and no further enquiry from any

spectrum -

was required to be carried out. The whole thing had been

embodied in the decree passed on the foundation of

compromise.

24. It is to be borne in mind that the term `compromise'

essentially means settlement of differences by mutual

consent. In such process, the adversarial claims come to

rest. The cavil between the parties is given a decent burial.

A compromise which is arrived at by the parties puts an end

to the litigative battle. Sometimes the parties feel that it is

an unfortunate bitter struggle and allow good sense to

prevail to resolve the dispute. In certain cases, by

intervention of well-wishers, the conciliatory process

commences and eventually, by consensus and concurrence,

rights get concretised. A reciprocal settlement with a clear

mind is regarded as noble. It signifies magnificent and

majestic facets of the human mind. The exalted state of

affairs brings in quintessence of sublime solemnity and

social stability. In the present case, as the factual matrix

would reveal, a decree came to be passed on the bedrock of

17

a compromise in entirety from all angles leaving nothing to

be done in the future. The curtains were really drawn and

-

the Court gave the stamp of approval to the same. Thus,

the inescapable conclusion is that the compromise decree

dated 03.04.1964 was a final decree.

25. Presently, we shall dwell upon the issue whether the

execution levied by the respondents was barred by

limitation or not. The executing Court, by its order dated

10.07.2006, accepted the plea of the present appellants and

came to hold that the execution petition filed by the decree

holder was hopelessly barred by limitation. In the Civil

Revision, the learned Single Judge overturned the decision

on several counts; (i) that no steps were taken and no

objection was raised by the father of the opposite parties for

setting aside the ex parte decree passed in the first suit, if

he was aggrieved by it, for about 9 years, though he had

appeared and had full knowledge about the first suit; (ii)

that as per the compromise decree, the parties were in

possession of the respective shares allotted to them and,

18

accordingly, neither preliminary nor final decree was drawn

up and there was no occasion for the petitioners for filing

execution case for enforcement of the compromise decree;

(iii) that the second suit challenging the compromise decree

-

passed in the first suit remained pending for about 21

years; (iv) that the appeal filed against the dismissal of the

second suit also remained pending for about 10 years; (v)

that after the appeal was dismissed and the judgment and

decree passed in the second suit became final, the execution

case was filed by the petitioner alleging dispossession from

the family business being run in the ground floor of the

building; and (vi) that on the basis of such allegation, the

compromise decree passed in the first suit became

enforceable.

26. Apart from the aforesaid reasons, the learned Single

Judge has opined that after the execution case was

admitted by the predecessor of the learned Sub-Judge

presumably after condoning the delay, the successor should

not have dismissed it on the ground of limitation. He placed

19

reliance on the decision rendered in Bharti Devi (supra)

and buttressed the reasoning that there was no delay in

levying of the execution proceeding. The learned single

Judge further took note of the pending Misc. Appeal No. 369

of 2008 preferred by the present appellants to reinforce the

conclusion.

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27. It is well settled in law that a preliminary decree

declares the rights and liabilities, but in a given case, a

decree may be both preliminary and final and that apart, a

decree may be partly preliminary and partly final. It has

been so held in Rachakonda Venkat Rao v. R. Satya

Bai7. It is worth noting that what is executable is a final

decree and not a preliminary decree unless and until the

final decree is a part of the preliminary decree. That apart,

a final decree proceeding may be initiated at any point of

time. It has been so enunciated in Hasham Abbas Sayyad

v. Usman Abbas Sayyad and others8.

7 (2003) 7 SCC 452

8 20

28. In Bikoba Deora Gaikwad and others v. Hirabai

Marutirao Ghorgare and others9, a two-Judge Bench of

this Court has held that only when a suit is completely

disposed of, thereby a final decree would come into being.

In the said case, it has also been laid down that an

application for taking steps towards passing a final decree is

not an execution application and further, for the purposes

of construing the nature of the decree, one has to look to -

the terms thereof rather than speculate upon the court's

intention.

29. Regard being had to the aforesaid principles and

having opined that the decree passed on the basis of a

compromise in the case at hand is the final decree, it is to

be addressed whether the execution is barred by limitation.

Article 136 of the Limitation Act (for brevity `the Act') reads

as follows: -

"Description of Period of Time from which period begins

application to run

(2007) 2 SCC 355

9

(2008) 8 SCC 198

21

Limitation

136. For the Twelve When the decree or order

execution of any years becomes enforceable or where

decree (other the decree or any subsequent

than a decree order directs any payment of

granting a money or the delivery of any

mandatory property to be made at a

injunction) or certain date or at recurring

order of any periods, when default in

civil court. making the payment or

delivery in respect of which

execution is sought, takes

place;

Provided that an application

for the enforcement or

execution of a decree granting

a perpetual injunction shall

not be subject to any period of

limitation."

30. On a perusal of the said Article, it is quite vivid that an

application for execution of a decree (other than a decree -

granting a mandatory injunction) or order of any civil court

is to be filed within a period of twelve years. In Dr.

Chiranji Lal (D) by LRs. v. Hari Das (D) By LRs.,10 the

question arose whether a final decree becomes enforceable

only when it is engrossed on the stamp paper. The three-

Judge Bench dealing with the controversy has opined that

10

(2005) 10 SCC 746

22 Article 136 of the Limitation Act presupposes two conditions

for the execution of the decree; firstly, the judgment has to

be converted into a decree and secondly, the decree should

be enforceable. The submission that the period of limitation

begins to run from the date when the decree becomes

enforceable, i.e., when the decree is engrossed on the stamp

paper, is unacceptable. The Bench, while elaborating the

said facet, proceeded to lay down as under: -

"24. A decree in a suit for partition declares the rights of the

parties in the immovable properties and divides the shares by

metes and bounds. Since a decree in a suit for partition creates

rights and liabilities of the parties with respect to the immovable

properties, it is considered as an instrument liable for the

payment of stamp duty under the Indian Stamp Act. The object of

the Stamp Act being securing the revenue for the State, the

scheme of the Stamp Act provides that a decree of partition not

duly stamped can be impounded -

and once the requisite stamp duty along with penalty, if any, is

paid the decree can be acted upon.

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

23

only thereafter the period of twelve years will begin to run would

lead to absurdity. In Yeshwant Deorao Deshmukh v.

Walchand Ramchand Kothari [1950 SCR 852 : 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

abovenoted, 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."

31. In Ram Bachan Rai and others v. Ram Udar Rai

and others11, a contention was advanced to the effect that

as the cost for enforcement of decree was not quantified, the

period of limitation could not have commenced from the

11

(2006) 9 SCC 446

24

date of judgment and decree. The Court referred to the

decision in Dr. Chiranji Lal (supra) and, after referring to

paragraphs 24 and 25 of the said decision, expressed the

view in unequivocal terms that the inevitable conclusion

was that the suit was barred by limitation.

-

32. In the present case, the learned counsel for the

respondents, in support of the order passed in Civil

Revision, has canvassed that when a suit was filed for

declaring the earlier compromise decree to have been

obtained by fraud and the same remained pending for more

than 21 years, the period of limitation commenced only after

the suit and the appeal arising therefrom were dismissed

since only on the conclusion of the said proceeding, the

decree became enforceable and further, the time consumed

in the said proceeding is to be excluded for computation of

the period of limitation under Article 136 of the Limitation

Act. We have already held that the decree was a final

decree. Therefore, it was immediately executable. The

question, thus, would be `was the time arrested?' On a

25

query being made, it was fairly conceded at the Bar that at

no point of time, there was any order by any court directing

stay of operation of the judgment and decree passed in P.S.

No. 131 of 1962. The question that emanates for

consideration is whether the period during which the suit

and appeal preferred by the appellants remained pending is

to be excluded for the purpose of limitation. In this context,

-

we may usefully refer to the dictum in Ratan Singh v.

Vijay Singh and Ors.12 wherein, while dwelling upon the

concept of enforceability of a decree and the effect of an

order of stay passed by the appellate court, the Bench

stated thus:

"8. When is a decree becoming enforceable?

Normally a decree or order becomes

enforceable from its date. But cases are not

unknown when the decree becomes

enforceable on some future date or on the

happening of certain specified events. The

expression "enforceable" has been used to

cover such decrees or orders also which

become enforceable subsequently.

12

2000 (8) SCALE 214

26

9. Filing of an appeal would not affect the

enforceability of the decree, unless the

appellate court stays its operation. But if the

appeal results in a decree that would

supersede the decree passed by the lower

court, it is the appellate court decree which

becomes enforceable. When the appellate order

does not amount to a decree there would be no

supersession and hence the lower court decree

continues to be enforceable."

33. In Ram Bachan Rai (supra), the two-Judge Bench

took note of the fact that an application under Order IX

Rule 13 for setting aside the ex parte decree was dismissed

which was assailed in a miscellaneous appeal and -

ultimately in a civil revision. At no stage, stay was granted

by any court. The decree holders therein filed an

application for execution after 12 years. Regard being had

to the same, it was held that the execution proceeding was

barred by limitation.

34. In this context, it is fruitful to refer to the

pronouncement in Manohar v. Jaipalsing13. In the said

case, it has been held as follows:

13 AIR 2008 SC 429

27

"15. The order of purported stay passed by this

Court in terms of its Order dated 21.3.1988 is

also of no assistance to the plaintiff decree-

holder. The Special Leave Petition was filed

only against the Order dated 1.7.1985 refusing

to review its judgment and decree dated

2.9.1983. The stay of operation of the Order

dated 1.7.1985 for all intent and purport was

meaningless as the review petition already

stood dismissed.

16. Further direction of this Court that

computation of mesne profit would go on and

the same would be deposited by the appellant

is of no consequence inasmuch as by reason

thereof neither proceeding was stayed nor had

the operation of the judgment and decree been

stayed. In fact, it was an order passed in

favour of the decree holder. The said direction

did not come in his way to execute the decree

for possession."

-

35. In the case at hand, the compromise decree had the

status of a final decree. The latter suit filed by the

appellants was for partition and declaring the ex parte

compromise decree as null and void. As has already been

stated, there was no stay of the earlier judgment or any

proceedings emanating therefrom. In the absence of any

interdiction from any court, the decree-holder was entitled

to execute the decree. It needs no special emphasis to state

that there was no impediment or disability in the way of the

28

respondents to execute the decree but the same was not

done. Therefore, the irresistible conclusion is that the

initiation of execution proceedings was indubitably barred

by limitation. Thus analyzed, the reasons ascribed by the

learned single Judge are absolutely unsustainable. The

period of limitation stipulated under Article 136 of the Act

could not have been condoned as has been so presumed by

the learned single Judge. The reliance placed on the

decision in Bharti Devi (supra) is totally misconceived

inasmuch as in the said case, the execution proceeding was

initiated for permanent injunction. No exception can be -

taken to the same and, therefore, reliance placed on the

said decision is misconceived.

36. Ex consequenti, the appeal is allowed, the order passed

by the High Court in Civil Revision is set aside and that of

the executing court is restored. The parties shall bear their

respective costs.

.....................................J.

29

[Dalveer Bhandari]

.....................................J.

[Dipak Misra]

New Delhi;

February 27, 2012.