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Judgment
L.N. Mittal, J.—Judgment debtor No. 1 and one of the legal representatives of judgment debtor No. 3 have filed this revision petition under Article 227 of the Constitution of India, assailing order dated 21.04.2004 Annexure P-4 passed by the executing Court thereby dismissing objections Annexure P-2 filed by the petitioners. Suit filed by respondent No. 1-plaintiff (State Bank of Patiala) against petitioners and proforma respondents No. 2 to 6 including defendant No. 3 since deceased and represented by legal representative, was decreed by the trial Court vide judgment and decree dated 24.08.1984 for recovery of money. Respondent No. 1-decree holder (DH) filed execution petition on 14.02.1998 for execution of the said decree. Petitioners herein filed objections Annexure P-2 alleging inter alia that the execution petition is barred by limitation. Respondent No. 1 decree holder in reply Annexure P-3 alleged that the execution petition is not barred by limitation because the amount was advanced against mortgage deed and therefore, DH-Bank has right to recover the same within thirty days. Learned executing Court vide impugned order Annexure P-4 has held the execution petition to be within limitation and accordingly dismissed objections Annexure P-2 filed by the petitioners, who have, therefore, filed this revision petition to challenge the said order.
I have heard counsel for the petitioners and perused the case file whereas none has appeared for contesting respondent No. 1 in spite of service and last opportunity.
The decree sought to be executed is dated 24.08.1984. Execution petition was filed on 14.02.1998. According to Article 136 of he Schedule to the Limitation Act, 1963, limitation period for filing the execution petition is twelve years. However, execution petition was filed after expiry of the limitation period of twelve years. Consequently, execution petition is clearly barred by limitation.
Stand of respondent No. 1-DH that it had right to recover the amount within thirty years as the amount was advanced against mortgage deed, is patently misconceived and devoid of merit because limitation period for filing suit on the basis of mortgage is not the question involved in the instant execution petition. On the contrary, limitation period for filing execution petition is twelve years from the date of decree or when the decree became enforceable. In the instant case, the decree was passed on 24.08.1984 and was enforceable at once and therefore, limitation period of twelve years commenced from the date of the decree. Consequently, execution petition filed after expiry of limitation period of twelve years is barred by limitation.
Learned executing Court has observed that earlier execution petition was filed but was withdrawn as partly satisfied on 24.07.1996 and therefore, the instant execution petition is within limitation. This approach of the executing Court is perverse and illegal and suffers from jurisdictional error. Firstly, it is not mentioned in the impugned order as to whether even the earlier execution petition was filed within limitation period of twelve years or not. Secondly, when the earlier execution petition was dismissed as withdrawn as partly satisfied, it did not extend the period of limitation for filing the instant subsequent execution petition.
For the reasons aforesaid, I find that execution petition filed by respondent No. 1-decree holder is barred by limitation. Impugned order of the executing Court to the contrary is perverse and illegal and suffers from jurisdictional error. As a necessary consequence, the instant revision petition is allowed. Impugned order Annexure P-4 passed by the executing court is set aside. Objections Annexure P-2 filed by the petitioners are allowed and execution petition filed by respondent No. 1-decree holder is dismissed as time barred. Pending civil miscellaneous application, if any, is disposed of as infructuous.