V. NATH, J.:–Heard Mr. R.K.P. Singh, the learned counsel for the petitioners and Mr. Hare Krishana Kumar, the learned counsel for the opposite party.

2. Assailing the order dated 18.04.2013 passed in Execution Case No. 01 of 2012 rejecting the objection by the petitioners to dismiss the execution case as barred by limitation, the petitioners have preferred this revision application.

3. In order to appreciate the contentions raised by the learned counsel for the parties, it would be fruitful to briefly notice the history of the present litigation. The title suit for partition was filed in the year 1973 and a preliminary decree for partition was passed on 13.09.1977. Thereafter, the proceeding for preparation of final decree was initiated and ultimately the final decree was passed on 18.12.1987. The judgment debtor-petitioners filed F.A. No. 69 of 1988 before this Court against the final decree. The First Appeal No. 69 of 1988 came to be dismissed on merits on 21.09.2010. Thereafter, the decree-holder filed Execution Case No. 01 of 2012 praying for execution of the final decree.

4. The judgment debtor-petitioners appeared in the execution case after notice and filed objection petition on 20.06.2012 praying to reject the execution petition as barred by limitation. The decree holder-petitioner filed their rejoinder and after hearing the parties, the learned court below by the impugned order has held that the execution case was not barred by limitation and consequently rejected the objection raised by the judgment debtor-petitioners.

5. Mr. Singh, the learned counsel for the petitioners has submitted that admittedly the final decree was passed on 18.12.1987 and therefore the limitation of 12 years as prescribed under Article 136 of the Limitation Act would run from that date as the decree became immediately enforceable. It has been propounded that the period of limitation would start from the date when the decree became enforceable and filing or pendency of appeal against the said decree would not arrest running of the period of limitation unless the stay has been granted by the appellate court in appeal. It has also been submitted that the decree holder-opposite parties deliberately filed the stamp paper and the final decree engrossed on stamp paper on 31.07.1989 because of the delay committed by the decree-holder. It has also been argued that in the execution petition it is the original decree which has been sought to be executed and not the appellate decree but the learned court below has committed error of jurisdiction and acted with material irregularity in coming to the conclusion that the execution case has been filed within the prescribed period of limitation. The learned counsel for the petitioners has placed the reliance on the judgment of the Apex Court in the case of Hameed Joharan Vs. Abdul Salam 2001 (7) SCC 573, Ratan Singh Vs. Vijay Singh 2001 (1) SCC 469 and Dr. Chiranji Lal Vs. Hari Das 2005 (10) SCC 746 in support of his submissions.

6. Per contra, Mr. Kumar, the learned counsel for the decree-holder-opposite party has submitted that there is no error of jurisdiction or illegality in the impugned order rejecting the objection of limitation as raised by the judgment debtor-petitioners. It has been canvassed that the axiomatic principle that the appeal is continuation of the suit must not be ignored and the starting point of limitation for filing the execution case would be the date when the appeal against the said decree stood disposed of. It has been highlighted that in the present case the petitioners themselves assailed the final decree by filing the first appeal before this Court and put the said decree in jeopardy and therefore the execution case filed within 12 years of the disposal of the first appeal can by no stretch be said to be barred by limitation.

7. After condensing the rival submissions on behalf of the parties, the perceptible note of discord between them is the starting point of limitation as prescri

Click Here to Read the rest of this document