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Judgment
Heard.
By this petition, the petitioner challenges the impugned order dated 06.01.2015 passed below Exhibit 17 in Regular Darkhast No.222/2010 pending before learned Joint Civil Judge, Senior Division, Nagpur, by which the application for execution is rejected by upholding the objection raised by the respondents therein.
The facts which are narrated and are not disputed are as under: One Pandurang sold the suit property and assigned right to execute the decree for possession passed in favour of father of the present petitioner, vide registered sale deed dated 25.02.1974. Father of the petitioner had filed execution petition, being Regular Darkhast No. 135 of 1976, against the present respondents/judgment debtors.
While the said Darkhast proceeding was pending, one Shivcharan Gadhe filed a suit, being Regular Civil Suit No.996 of 1977, seeking a declaration that the decree for possession passed in favour of father of the petitioner was not binding on him. Application for grant of temporary injunction in the said civil suit was allowed vide order dated 08.01.1979, whereby execution of the warrant of possession in the execution proceedings filed by the petitioner's father was stayed.
Regular Civil Suit No.996 of 1977 came to be decreed vide judgment and decree dated 18.08.1993, inter alia holding that Shivcharan was owner of half of the suit property and that the decree could not be executed against him. However, relief of confirmation, possession and permanent injunction was not granted. Shivcharan and the petitioner's father preferred two separate appeals, being Regular Civil Appeal Nos.553 of 1993 and 122 of 1994, respectively, challenging the judgment and decree dated 18.08.1993 passed in Regular Civil Suit No.996 of 1977. Appeal preferred by Shivcharan was dismissed and the appeal filed by the petitioner's father came to be allowed vide judgment and decree dated 30.04.2005.
The judgment and decree dated 30.04.2005 was challenged in Second Appeal No.434 of 2005 before this Court. This Court vide its judgment dated 02.07.2009 dismissed the Second Appeal, confirming the judgment and decree dated 30.04.2005. The said judgment was not challenged by either of parties to the Hon’ble Supreme Court of India. As such, till 02.07.2009, the dispute was pending between the parties.
In light of the abovesaid factual position, it is crystal clear that half share in favour of Shivcharan was modified in a subsequent judgment and decree dated 18.08.1993. So also, the proceedings which were pending between the parties has attended the finality in the year 2009. Hence, according to the petitioner, rejection of the execution proceeding on the ground of limitation is not justified in the matter.
Learned Counsel for the respondents has strongly opposed this application. According to the respondents, the earlier Regular Darkhast Proceeding, being No.135 of 1976, was dismissed by order dated 04.09.2019. It is further stated that considering the date of judgment and decree of which execution is sought is clearly barred by limitation. According to the respondents, once the proceedings filed by the respondents for execution were dismissed, the further proceedings are not tenable on the ground of limitation, and therefore, considering the objection raised before the executing Court and the reasons recorded by the learned executing Court are justified in the matter.
In the present case, it would be necessary to note that the earlier decree, on the basis of which the Regular Darkhast was filed, was based upon the judgment and decree dated 31.10.1963. As recorded above, the subsequent proceedings were filed to challenge the said judgment and decree by separate suit, and the decree was then modified, and it was held that one Shivcharan was owner of half of the suit property. The said proceedings then finally decided in the year 2009. Therefore, it is not the case that present petitioners were totally reluctant in prosecuting their cause. On the contrary, as the subsequent proceedings were initiated and same were pending before the competent Court of law, and same was finally decided in the year 2009, therefore considering the subsequent challenge and judgment passed by competent Court of law, the proceedings of execution filed subsequently are within limitation.
It is further pertinent to note that the earlier execution proceedings were not decided on merit. Therefore, merely earlier proceedings were rejected for want of prosecution, cannot be a reason to state that the subsequent proceedings filed by the present petitioners are not tenable.
In the light of the abovesaid facts of the matter, the learned executing Court has committed a manifest error by holding that the execution proceedings were not filed within limitation. Hence, the impugned order which is perverse in nature is liable to be quashed and set aside. Accordingly, the following order is passed:
ORDER
The Writ Petition is allowed.
ii) The impugned judgment and order dated 06.01.2015 passed below Exhibit 17 in Regular Darkhast No.222/2010 passed by Joint Civil Judge, Junior Division, Nagpur is hereby quashed and set aside.
iii) The Regular Darkhast proceeding bearing No.222/2010 are restored to the file of Joint Civil Judge, Junior Division, Nagpur.
iv) The learned Joint Civil Judge, Junior Division, Nagpur is directed to decide the same on its own merits.
All the parties are directed to appear before the executing Court on 10.09.2026.
The Writ Petition stands disposed of accordingly. No order as to the costs.