Shankarlal Patidar vs Nandram Patidar

Hon''ble Shri N.K. Mody, J.—Being aggrieved by order dated 11/10/2007 passed by District Judge, Mandsaur in MA No. 8/2007, whereby order dated 10/11/2007 passed by Civil Judge, Class 1, Mandsaur in Execution Case No. 247-A/96/02 was dismissed, was maintained, present petition has been filed. Short facts of the case are that one Jagannath filed a suit against Shankarlal and Devram in the Court of Civil Judge, Class-2, Mandsaur, which was registered as CS No. 462-A/81. In that case, temporary injunction was granted in favour of Jagannath vide order dated 27/07/1981 to the effect that Shankarlal and Devram defendants in that suit shall not create any obstruction into possession of plaintiff Jagannath and in case suit filed by Jagnnath is dismissed then Shankarlal and Devram shall be entitled for compensation from the date of filing of the suit till the date of judgment.

In compliance of that order Nandram stood surety for Jagannath and in the year 1982, suit filed by Jagannath was dismissed on merits. Since Nandram stood as surety therefore, petitioner filed execution petition for recovery of Rs. 2,24,000.00. The application was opposed by the respondent. After recording of evidence vide order dated 10/01/2007 execution petition filed by the petitioner was dismissed against which appeal was filed which was also dismissed. Hence this petition.

Learned counsel for the petitioner argued at length and submits that orders passed by the learned Courts below are illegal,incorrect and deserve to be set aside.It is submitted that both the Courts below have committed error of law in holding that execution petition is barred by time. Learned counsel submits that the impugned order dated 27/01/1982 was passed with the condition that if suit is dismissed then the defendant shall be entitled for mesne profits from the date of filing of the suit till its disposal. Learned counsel submits that the suit was finally dismissed on 6/02/1998. It is submitted that judgment was affirmed by appellate Court vide judgment dated 6/11/2000 while application in execution petition was filed on 19/02/2002, therefore, learned Courts below erred in holding that application was barred by time. Learned counsel submits that the Courts below erred in holding that the petitioner failed to explain as to on what date the original suit was dismissed while in execution petition it is clearly mentioned that the suit was dismissed on 6/02/1998 and appeal was dismissed on 6/11/2000. It is submitted that in the facts and circumstances of the case, petition filed by the petitioner be allowed and the orders passed by the Courts below be set aside and the respondent be directed to pay decretal amount.

Shri Vinay Saraf, learned counsel for the respondent submits that no illegality has been committed by the learned courts below in passing the impugned orders whereby execution petition filed by the petitioner was dismissed. It is submitted that the petition filed by the petitioner has no merits and the same be dismissed. From perusal of the record, it is evident that original suit was filed by Jagannath against Devram and Shankarlal. Interim order is dated 27/01/1982 which is wrongly mentioned in the impugned order as 27/07/1981. The injunction was granted in favour of Jagannath and against Devram to the effect that Jagannath shall furnish surety bond to the effect that in case suit is dismissed then Jagannath shall be liable to pay compensation from the date of filing of the suit till its disposal. It appears that Nandram stood surety for Jagannath. There are more than one reason on the basis of which it can be held that the order passed by the Courts below requires no interference which are as under:

Execution petition is filed on 19/09/2000 for execution of the order dated 27/01/1982 passed in Civil Suit No. 462-ADA which was pending in the Court of Civil Judge Class II. Contention of the petitioner is that the Civil Suit was dismissed on 6/02/98 and the appeal was dismissed on 6/11/2000 while the execution petition is filed before dismissal of the appeal.

Suit which was dismissed on 6/02/1998 is bearing Civil Suit No. 247A/96 pending in the Court of Class 1, Mandsaur. There is nothing on record to show that Civil Suit No. 481/81 is the same suit which is numbered converted as Civil Suit No. 247A/96.

Similarly, there is nothing on record to show that Brij Kishore who was plaintiff in Civil Suit No. 297A/ 96 is substantial place of Jagannath who was plaintiff in Civil Suit No. 462A/81.

There is nothing on record to show that Brij Kishore is the assignee of Jagannath and is liable to pay the damages for which Jagannath was liable.

There is nothing on record to show that respondent Nandram was also surety for the transferee of Jagannath.

There is nothing on record to show that how the amount of Rs. 2,24,000.00 has been calculated as damages.

In the circumstances, this Court is of the view no illegality has been committed by the learned Court below in dismissing the execution petition filed by the petitioner. In view of this, the petition filed by the petitioner stands dismissed. However, liberty is given to the petitioner to file an appropriate execution petition mentioning all relevant facts and impleading all necessary parties. If such an execution petition is filed and appropriate application is also filed u/s. 5 read with S. 14 of the Limitation Act for excluding the period which was spent by the petitioner in prosecuting the present petition bonafidely then the same shall be considered by the learned Court below in accordance with law without being impressed by the orders impugned herein and also by this order.

With the aforesaid this petition stands disposed of.