Execution of a decree is barred by limitation if filed beyond 12 years from the date of the original decree, and dismissal of an appeal for want of prosecution does not affect its enforceability.

JUDGMENT :

Heard learned Counsel for both the parties.

2. By consent and request of parties, the matter is taken up for final hearing at the stage of admission.

3. The present petition is filed challenging the order dated 31.10.2023 passed below exhibit-1 in Regular Dharkast No.05/2015 by the learned Civil Judge Junior Division, Motala. There was Regular Civil Suit No.68/1997 filed by the respondent before the learned Civil Judge, Junior Division, Malkapur, which was decreed vide judgment and decree dated 02.12.1999. The Civil Judge Junior Division by judgment and decree allowed the suit for possession in respect of 51 R of land out of Gat No. 77 belonging to the present petitioner. Petitioner challenged the said judgment and decree by filing a Regular Civil Appeal No.131/1999, there was no stay during the pendency of appeal. The said appeal came to be dismissed in default for want of prosecution on 25.11.2004. On 04.12.2015, the respondent filed the executive proceeding before the learned Civil Judge Junior Division, Motala for possession of 51 R land from Gat No.77 vide regular Dharkar No.05/2015. The petitioner appeared in the matter on 26.02.2016 had filed his objections to the maintainability of the proceeding. It is submitted that execution proceeding is hopelessly barred by the law of limitation. The suit was filed after 12 years of the said judgment and decree dated 03.12.1999. It is also contended that the decree is not executable as the revenue authority has wrongly shown Gat No.78 in 7/12 extract. He also raised certain objections in respect of wrong measurement, however at present, the main ground is the executive proceeding is filed beyond limitation.

4. As against this, learned Counsel for respondent in reply submitted that from the dismissal of appeal, the limitation will begin. Moreover, it is the contention of respondent that it is a preliminary decree and enquiry in respect of mesne profit is directed to be conducted under Order 20 Rule 12 of CPC. The parties relied on judgments which will be discussed at appropriate stage.

5. Heard both the parties at length, considered the citation relied on in the impugned order. The suit filed by the respondent herein was decided on 02.12.1999, the following order came to be passed, which reads as under:

“ Order

1) Suit is decreed.

2) Defendant shall hand over possession of 51 R. land out of land Gat No. 77 to the plaintiff as shown in blue colour in map Exh.42 which shall form the part of decree hereinafter, within 3 months.

3) Defendant shall also pay Rs. 500/- to the plaintiff towards mesne profit prior to filing of suit.

4) The future inquiry be held in respect of mesne profit under Order 20 rule 12 of CPC from the date of Judgment till delivery of possession by defendant to plaintiff.

5) Defendant shall pay costs to plaintiff and shall bear his own.

6) Decree be drawn up accordingly.”

6. There was appeal carried out by the present petitioner vide Civil Appeal No.131/1999. The same came to be dismissed on25.11.2004. The following order came to be passed:

“ ORDER

The Appellant and his Advocate are absent when called.

It appears that the Appellant is not interested in prosecuting the Appeal.

Hence, Appeal is dismissed in default for want of prosecution.

No order t cost.”

7. Thereafter, the respondent herein filed Regular Darkhast No.05/1015 on 04.12.2015. The petitioner raised his objection vide Exhibit-8. The main objection was that execution is filed beyond limitation.

8. The learned Civil Judge Junior Division, Motala held that in the affidavit against the suit of limitation, it is held that appeal came to be dismissed on 25.11.2004, and Darkhast came to be filed on 04.12.2015, which means it is filed within 12 years of dismissal of appeal.

9. The petitioner relied on Bimal Kumar and another Vs. Shakuntala Debi and others 2012 (3) Civil LJ 266, wherein the Hon'ble Apex Court held as under:

“40. We have already held that the decree was a final decree. Therefore, it was immediately executab