( 1 ) AS many as 13 petitioners are before this Court, who are the original objectors in Regular Darkhast Application no. 213 of 2002 filed in the Court of the learned Joint civil Judge (Junior Division), Vadodara, who was pleased to grant the same and was also pleased to reject the application filed by defendant no. 2-Harshadbhai Shantilal shah, by order dated 10. 10. 2003. The present petitioners had filed their objections by exh. 21.

( 2 ) SHORT facts leading to the present litigation are that the judgement creditor-respondent no. 1 herein had filed regular Civil Suit No. 1209 of 1985 against two defendants. One Shankar Rao Laxmanrao Shelar, who died on 29. 10. 1986, hence his heirs are joined as 1/1 and 1/ 2 in darkhast Application. The said Regular Civil Suit No. 1209 of 1985 was decreed on 19. 09. 1986. The judgement and order passed by the learned 2nd Joint Civil Judge (Junior division), Vadodara is produced at page 42 to this Civil revision Application, whereas the decree is produced at page 43. The material part is at page 45. It is mentioned at page 46 that it was agreed between the plaintiff and defendant no. 1 (of Regular Civil Suit No. 1209 of 1985) that defendant no. 1 will execute a sale deed of the land mentioned in the agreement to sell; that no amount of consideration is due and payable by the plaintiff to the defendant; that on the land in question there are 14 vacant houses, possession of which is handed over to the plaintiff. It is further mentioned that possession of one of the 14 houses, was handed over to the defendants on ownership basis and it was agreed that after the life time of defendant no. 1 the same will go to his son- gajanan Shankar Rao Shelar and Ashaben Shankar Rao by inheritance. It is also mentioned that with regard to the suit land if any member comes forward and claims that the amount is not paid to him, it will be the responsibility of the plaintiff to pay the same. It so happened that after the said decree was passed on 19. 09. 1986, defendant no. 2 filed a Regular Civil Suit no. 1961 of 1986 and other objectors no. 3 to 15 filed special Civil Suit No. 669 of 1986. It is on record that regular Civil Suit No. 1961 of 1986 was dismissed for non prosecution on 20. 03. 2001. Thereafter, the plaintiff in that suit filed Civil Misc. application No. 133 of 2001 for restoration of the same.

( 3 ) THE learned advocate appearing for the petitioners contended that the decree in question has remained not executable on expiry of the period of 12 years on 18. 09. 1998. He submitted that the present Darkhast is filed on 19. 08. 2002 and therefore, the learned Judge ought to have dismissed the same in limine without even examining the contents of the execution application. He submitted that it is not in dispute that Regular Civil suit No. 1209 of 1985 was decreed on 19. 09. 1986 and 12 years have expired on 18. 09. 1996, and on expiry of 12 years the decree became non executable and hence the execution application should have been dismissed only on that short ground.

( 4 ) THIS very contention was raised on behalf of the objectors before the executing court and the learned judge has taken all pains to consider the rival submissions. The learned Judge has recorded that soon after the decree was passed on 19. 09. 1986, Special Civil suit No. 669 of 1986 was filed which is pending as on date. Defendant no. 2 had filed Regular Civil Suit No. 1961 of 1986 which as mentioned hereinabove was dismissed for non prosecution for absence of the plaintiff of that suit on 20. 03. 2001. The learned Judge has further recorded that it was on account of pendency of Regular Civil Suit no. 1961 of 1986 that the judgement creditor did not file darkhast and it was filed on 19th August 2002, after the suit (Regular Civil Suit No. 1961 of 1986) was dismissed.

( 5 ) THE learned advocate appearing for the petitioners also contended that the decree was obtained by fraud, and therefore, the same is vitiated and cannot be enforc

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