The limitation period for execution of a decree starts from the date of the second appellate court decree, where the first appellate court had set aside the trial court decree, as the original decree merges into the dismissal order recorded by the first appellate court.

P.K.Deb, J.

1. This Revision petition has been preferred against the Order dated 21.12.1995 passed by the Munsif, Ranchi in Misc. Case No. 2 of 1993 arising out of the Execution Case No. 1 of 1992, where by the application filed under Sec. 47 of the Code of Civil Procedure challenging the executability of the decree has been rejected.

2. The Title Suit No. 205 of 1973 was filed by Viswakarma Mandir Trust through its the then President, Baldeo Viswakarma for eviction of the petitioners and for delivery of possession of the suit property. The suit was decreed vide judgment dated 31.1.1976.It should be mentioned here that during the pendency of the suit, Baldeo Viswakarma died. Then Lakshman Viswakarma in capacity of its President had continued the suit. After the decree was passed the petitioners preferred Title Appeal No. 32 of 1976 and the appeal was allowed by the 1st Appellate Court and the decree for eviction as granted by the original Court was set aside vide judgment and decree dated 25.1.1978. Then the plaintiffs of the suit i.e. Viswakarma Mandir Trust filed Second Appeal No. 74 of 1978 (R) before this Court and the said appeal was allowed vide judgment and decree dated 5.9.1985 and the Eviction decree was granted.

3. Although, the eviction decree was granted in the Second Appeal in the year 1985 the decree holder levied execution case after seven years being Execution Case No. 1/92 and the date of levying was 10.1.1992. The executability of the decree was challenged by the petitioners by filing a petition under Sec. 47 of the Code of Civil Procedure, which was registered as Misc. Case No. 2 of 1993. There were three fold grounds in challenging the executability of the decree namely :

(i) The plaintiff of the suit or the decree holder being a trust property and when all trustees have not joined then the suit and in consequence of it the decree is void in the eye of law;

(ii) The present Execution case has been levied for and on behait of Viswakarma Mandir Trust, who has no authority under the law to levy the execution;

(iii) That the execution case is hopelessly barred by limitation.

4. Before the Court below, both parties adduced evidence in support of their contentions and all three points raised have been rejected by the learned Executing Court, hence this revision petition has been preferred.

5. While admitting this revision petition, vide order dated 14.3.1996 this Court has formulated two points, namely, whether the Execution application can be filed by a person who is not the party in the suit and whether the execution application has been filed beyond the period of 12 years from the date of the decree.

6. Mr. M.S. Akhter appearing on behalf of the petitioners did not press the point of trustees being not joined in the suit and practically this point cannot be raised by him also as that was a matter to be fought out in the suit itself and when this Court in the Second Appeal had held that the suit was maintainable in its present form, the said question cannot be raised before the Executing Court. Regarding the second ground of representing Viswakama Mandir Trust by Basant Viswakarma from the side of the decree holder, it could be proved that after the new trust was created in the year 1992, Basant Viswakarma vide a Resolution was made the President and as such there was no illegality in levying the execution by Basant Viswakarma for and on behalf of Viswakarma Mandir Trust. Lakshman Viswakarma, who was the previous President and who continued the suit had deposed in favour of the petitioners-judgment debtors regarding the compromise being arrived at between the parties and the petitioners were paying rent on the basis of the compromise. This deposition of Lakshman Viswakarma has been rejected by the learned Court below as after 1992 he had no authority to represent the Viswakarma Mandir Trust and no document can be produced regarding such compromise being arrived at.

7. When a lawful decree is in existenc