Maria Alda Estrelina and another vs Antonio Pinto and others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2000 Supreme(Bom) 379

IN THE HIGH COURT OF BOMBAY
(PANAJI BENCH)
R.K. Batta, J.
Maria Alda Estrelina another.... Applicants.
Versus
Antonio Pinto others... Respondents.
Civil Revision Application No. 147 of 1996, decided on 5-5-2000.
Advocates appeared :
S.D. Lotlikar, for the applicants.
V.P. Thali, for the respondents No. 1 and 2.

Headnote:Order XLI, Rule 4-Appeal against decree filed by all defendants but only one of plaintiffs joined as respondent-Decree set aside--Decree in favour of other plaintiffs/decree holders could not be disturbed by applying principle of Order XLI, Rule 4.-Order XLI, Rule 4 of the Civil Procedure Code obviously is not attracted since the enabling provision thereunder applies when one of the plaintiffs or one of the defendants appeal from the whole decree and the decree is reversed or varied, in favour of all the plaintiffs or the defendants, as the case may be. In the case under consideration, the appeal was filed by all the defendants, but against only one of the plaintiffs and as such, this rule did not come into play at all.
Section 29(2) and Portuguese Civil Procedure Code-Execution of decree passed on 14.6.1976-No limitation vis-a-vis execution proceedings prescribed under Portuguese law Section 29(2) of Limitation Act cannot be invoked-In view of the fact that no limitation is prescribed under the Portuguese Civil Code in relation to execution proceedings, the limitation which would apply to execution proceedings, would be the Limitation Act, 1963.-When Goa, Daman and Diu was liberated on 19.12.1961, the laws which were applicable were Portuguese Laws which included the Portuguese Civil Procedure Code of 1867. By virtue of Section 5 of the Goa, Daman and Diu (Administration) Act. 1962 all laws in force immediately before the appointed day, 19.12.1961 were saved. By Goa, Daman and Diu Regulations (II of 1962) and (2 of 1963), several Acts in force in rest of India were extended to the Territories of Goa, Daman and Diu. The Limitation Act, 1963 was brought into force in the whole of India with effect from 1.1.1964 and it became applicable from that date to Goa, Daman and Diu as well. Subsequently by Goa, Daman and Diu (Extension of the Code of Civil Procedure and the Arbitration) Act, 1965 was brought into force in the Territories of Goa, Daman and Diu with effect from 15.6.1966. Likewise, Goa Daman and Diu Civil Courts Act was also extended on the same day, i.e. on 15.6.1966. The suit in question filed on 14.6.1966 was decreed on 14.6.1976. In the Portuguese Law, there is no prescription/limitation vis-a-vis execution proceedings and,
as such, the first requirement for invoking Section 29(2) is not satisfied, and provisions of Limitation Act, 1963 would be applicable to execution 135 of the Schedule to the Limitation Act, 1963 is three years from proceedings for execution of decree in the suit. For enforcement of a decree granting mandatory injunction, the period of limitation prescribed under Article, the date of decree or where a date is fixed for performance, such date. For execution of any decree (other than a decree granting mandatory injunction) or order of any Civil Court, the period of limitation prescribed under Article 136 is 12 years from the date 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. The suit was decreed in favour of the applicants/decree holders on 14.6.1976 and the application for execution was filed on 18.3.1993 which is much beyond the period of limitation prescribed under Articles 135 and 136 of the Limitation Act, 1963. Therefore, the execution initiated by the applicants is barred by limitation. AIR 1995 SC 2272, Relied.

JUDGMENT - R.K. BATTA, J.:---A suit for declaration that the suit land belongs to the estate of Santana Afonsos and Maria Adelina Luiza Clara Marques Afonso was filed by Froilano Perpetua Socorro Marques Afonso on 14-6-1966. In this suit, mandatory injunction to remove plantation, fencing and construction done by the respondents in the suit land, was sought with directions to restore the suit land. An objection was raised by the respondents that the suit by Froilano Perpetua Socorro Marques Afonso was not competent. The said Froilano Afonso sought to implead legal heirs of Santana Afonso and his wife Maria Afonso in terms of Article 269 of the Portuguese Civil Procedure Code, read with Articles 356 and 359 of the Portuguese Civil Procedure Code, but the said application was rejected vide order dated 12-3-1970. The said Froilano Afonso thereafter filed an application under Order 1, Rule 10(2) of Code of Civil Procedure for impleading the said heirs which was granted and the said heirs were ordered to be impleaded in the suit. Wakalatnama on behalf of the said legal heirs was filed. After due trial, the suit was decreed and the following order was passed by the Civil Judge, Senior Division, Panaji on 14-6-1996 :

"......... On the grounds set forth, I hold the suit tenable and proved and grant to the plaintiffs the reliefs prayed for by them. The area of 175.5 sq. metres, to which the defendants have right, shall be demarcated in the execution of the judgment; after the demarcation is carried out, the defendants should remove the plantation and other works, made by them outside that area of 175.5 square metres, by replacing the land to its status quo ante. I hold the counter-claim framed by the defendants in the written statement unmaintainable and not proved whereby I discharge the plaintiffs from the same. Court fee and advocate's fee to the tune of Rs. 300/- to be borne by the defendants."

The respondents filed "Appellacao" (Civil Appeal No. 179/76) under the Portuguese Civil Procedure Code for which only Froilano Perpetuo Socorero Afonso was joined as respondent. The said appeal was allowed vide judgment dated 30-7-1977 of the learned District Judge, Panaji, and the impugned judgment dated 14-6-1976 of the Civil Judge, Senior Division was set aside. The said Froilano Afonso filed Second Appeal 32/77 which was dismissed. On 18-3-1993, the applicants filed Execution Application No. 20/93/A for execution of the decree passed in Civil Suit No. 26/66 (old regime) 74/66. The executing Court vide order dated 4-4-1996 dismissed the said execution application which is subject matter of challenge in this revision.

2.Before the executing Court, the respondents objected to the execution, inter alia, on the ground that the application was barred by law of limitation; that the appeal preferred by the respondents was on the grounds which were common of plaintiffs in the said suit; that the decree passed by the trial Court no longer subsists and nothing was left to be executed and that the setting aside of the decree in the appeal preferred against Froilano Afonso ensured to the benefit of the respondents against all the plaintiffs in the said suit. The Civil Judge, Sr. Division, Panaji, in a slip-short order held that the decree-holders had not preferred any further appeal to set aside the order of the learned District Judge, Panaji and as such, no decree survives for the purpose of execution.

3.Learned Advocate Shri Lotlikar argued for the applicants and learned Advocate Shri V.P. Thali argued for the respondents.

4.Learned Advocate for the applicants submitted that the questions which arise for consideration are :

1. Whether after the decree is set aside against one of the plaintiffs, namely Froilano Afonso who alone was made party in the appeal, the decree can be executed by those plaintiffs against whom no appeal was filed?

2. Whether limitation for execution of such decree is 3 years or 12 years under the Indian Limitation Act, or 30 years

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2000 Supreme(Bom) 379

Cases Referred (2)