1. By the present Revision Application filed under section 115 of the Code of Civil Procedure, 1908 (“the Code”), the petitioners have challenged the order dated 4.2.2015 passed by the learned Third Additional Senior Civil Judge, Anand below application Exh.22 whereby the learned Judge has rejected the said application.

2. The application Exh.22 was preferred seeking rejection of the execution petition filed by respondent No.1-original plaintiff on the ground that the decree was passed in the suit on 31.7.1982 for eastern part of the land bearing Survey No. 1059 of village Bakrol and for execution of such decree, the execution petition was preferred on 31.3.2011 which was beyond the time limit prescribed for filing the execution petition.

3. The learned Judge has not accepted the application Exh.22 mainly on the ground that the decree partly in favour of decree holder attained finality after the Civil Appeal No.162 of 1982 and Second Appeal No. 172 of 1996 preferred by the decree holder were dismissed on 21st June, 1996 and on 28th February, 2013 respectively. The learned Judge has held that limitation to file execution petition would start from the date when the judgment and decree was confirmed in the appeal by the High Court.

4. Learned Advocate Mr. Mehul Shah appearing with learned Advocate Mr. Hardik Brahmbhatt for the petitioners submitted that against the partial decree passed by the trial court, there was no challenge made by any of the defendants including the petitioners and, therefore, the decree was enforceable from the date when it was passed by the trial court within the time limit of 12 years from the date of the decree, however, undisputably, the execution petition was filed after a period of more than 28 years. Mr. Shah submitted that since the civil appeal before the first appellate court as also the second appeal before this Court were preferred by the respondent No.1 – plaintiff against the part of the claim not allowed, the plaintiffs were never prevented from enforcing the decree for part claim passed in their favour. Mr. Shah submitted that if the decree for part claim was not under challenge and when there was no stay of the proceedings under the decree by the higher forum, limitation for filing the execution petition to enforce the decree would start from the date of such decree and pendency of appeals for rest of the claim in the suit would not save the limitation for filing the execution petition. Mr. Shah has referred to Order 41, Rule 5 of the Code and submitted that the legislature clearly intended that in absence of any stay in appeal, decree granted for part claim becomes enforceable. Referring Section 15 of the Limitation Act, 1963 (“the Act”), Mr. Shah submitted that the period during which the enforcement or execution of decree is stayed by injunction or order is to be excluded for the purpose of limitation for filing the execution petition, but in absence of any exclusion of the period on account of any stay, limitation period would be reckoned from the date of the decree. Mr. Shah submitted that mere pendency of the appeal that too not against the decree in favour of the plaintiff without any interim stay if to be considered for the purpose of exclusion of time limit for filing the execution petition, the provisions of Order 41, Rule 5 of the Code as well as section 15 of the Act will be redundant. Mr. Shah submitted that in view of the change brought in for limitation for filing of the execution petition by Article 136 of the Act since full 12 years are available for filing the execution petition, the factum of mere pendency of appeal before the higher forum in absence of any stay against the decree is not to be considered for the purpose of counting time limit for filing the execution petition. Mr. Shah submitted that the definition of decree uses the phrase “all or any of the