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Judgment
Rajesh Tandon, J.—Heard Sri Sharad Sharma counsel for the revisionists and Sri Pramod Tiwari, counsel for the Respondents.
By the present civil revision filed u/s 115 of the Code of Civil Procedure, the revisionists have prayed for setting aside the order dated 19th July, 2005 by which the objections u/s 47 of the CPC has been allowed.
Briefly stated, a suit was filed by the Plaintiff praying for the decree of specific performance dated 4th March, 1987. The suit was proceeded ex-parte on 26-2-1990, however, the same was decreed on 8th May, 1990 and the operative portion of the judgment is quoted below:
? ? ? ? ? ? | ? ? ? 1000/- . ? ? ? ? ? ? ? ? ? ? ? |
The Defendant thereafter has filed an application on 16th March, 1991 for recalling of the said order under Order 9 Rule 13 of the CPC and the same was rejected on 8th October, 1991. The Defendant has again preferred a Misc. Appeal being Misc. Appeal No. 70 of 1991 against the order rejecting the application under Order 9 Rule 13 of the CPC and the said appeal was allowed and the order dated 8th October, 1991 was set aside with cost of Rs. 250/- by 23rd November, 1992. The operative portion of the order dated 13-11-1991 is quoted below:
? | ? 8 - 10 - 91 ? ? ? ? 9 13 ? ? ? 5 ? ? ?, ? 250 /- ? ? ? ? 23 - 11 - 92 ? ? ? ? ? , ? ? ? | ? ? ? ? ? - 2 ? ? |
The decree-holder thereafter started the execution proceedings on 1st October, 2003. In column No. 4, the decree holder has specifically mentioned that against the order dated 9th October, 1991 an appeal was preferred and the same was allowed on 13-11 -1992 and the amount of Rs. 250/- having not been paid the execution application was filed for the non-compliance of the said order. Column No. 4 to that effect is quoted below:
? ? 8 - 5 - 90 ?: ? ? ? ? 23/91 ? . ? ? ? (. .) ? 8 - 10 - 91 ?. ? ? ? 8 - 10 - 91 ? ? 70/91 ? . ? ? 13 - 11 - 92 ? ? ? ? 250 ? ? ? ? 23 - 11 - 92 ? ? ? ? ? ? | ?/? ? ? ? ? : ? 8 - 5 - 90 ? |
Objections were filed on the execution application by the judgment debtor, who was the Defendant in the Original Suit and it was stated that the decree having been passed on 8th May, 1990 and the same is barred by time and the decree cannot be executed by virtue of Article 136 of the Limitation Act.
The Executing Court has allowed the objections on the ground that a sum of Rs. 10,000/- has not been paid by the Plaintiff and further it was time barred.
Article 136 of the Limitation Act provides as under:
Description of application
Period of limitation
Time from which period begins to run
136- For the execution of any decree (other than a decree granting a. mandatory injunction), or order of any Civil Court
Twelve 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 :
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.
As will appear from the aforesaid Article, that the time begins to run, when the decree or order becomes enforceable. Admittedly there was an application under Order 9 Rule 13 of the Code of Civil Procedure. The same was dismissed. Thereafter an appeal was preferred. The same was also allowed. The amount of Rs. 250/- was not deposited and there is nothing on the record to suggest that any amount was ever deposited.
Further a sum of Rs. 10,000/-was realized by the Defendant for getting the decree executed otherwise, the Plaintiff was given liberty to get the sale deed executed through the courts of law.
It has been held in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), that if the cost imposed by the court has not been paid then no privilege can be given to the party concerned, who has not paid the cost.
The cost being mandatory and the court has directed that in the event the cost is not paid, the order dated 19-07-2005 passed by the Court below rejecting the application under Order 9 Rule 13 of the Code of Civil Procedure, shall be made absolute, therefore, the application under Order 9 Rule 13 shall be treated to have been dismissed and the decree has become final. However, the enforceable decree came into force after the disposal of the appeal under Order 9 Rule 13 of the Code of Civil Procedure, therefore, the limitation will begin to run from the date when the decree became enforceable.
In view of the aforesaid findings, the matter is sent back to the executing Court for passing the order afresh after considering the aforesaid observations made above.
The revision is allowed. No order as to costs.