Honble K.C. AGRAWAL, C.J.— This is a judgment-debtors revision filed under Section 115 of the Code of Civil Procedure challenging the order passed by the Munsif Magistrate rejecting his objection filed u/s. 47 C.P.C..

2. A preliminary decree was passed on 23.7.1953 by the Addl. Munsif, Ajmer City followed by final decree dated 13.11.1963. Against the aforesaid judgments, an appeal was preferred to the District Judge in which the final decree was modified by the order and judgment dated 26.8.1968. Against the said order, a Second Appeal was filed by the petitioner Sayad Abdul Rauf, which was dismissed in default on 3.9.1981. Thereafter, on 12.9.86, the non-petitioners filed an execution application. To the execution application, an objection was preferred by the petitioner u/s. 47 C.P.C. Amongst others, one of the pleas, which was pressed before me in this revision, was that the execution application was barred by time halving been preferred after three years of the dismissal of the second appeal in default by the order dated 3.9.1981 of the High Court.

3. The decree-holders asserted that the execution application had been filed within time and as such, the objection of the petitioner-judgment debtor had no substance.

4. Learned counsel for the petitioner urged that as the dismissal of second appeal in default did not amount to any decree, the period of limitation could not be taken to run from the date of dismissal of the second appeal in default by the High Court. Sub-section (2) of Section 2 of the Code of Civil Procedure defines the word decree, which runs as under :

"Decree" means the formal expression of any adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within S. 144, but shall not include-

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for deault."

According to the interpretation of the learned counsel for the petitioner, as dismissal of the second appeal was expressly excluded from the definition of the word decree, that dismissal will not be taken into account.

5. Article 136 of the Limitation Act provides time from which period to execute the decree runs. In the third column of the schedule, the material words are as under:-

Description of application Period of limitation Time from which period begins to run

136. For the execution of any decree (other than a decree granting a mandatory injunction) or order of any Civil Court. Twelve years. Where the decree or order becomes enforceable or where the decree or any subsequent order directs any payment of money...

6. Article 136 of the present Limitation Act corresponds in scope and applicability to Article 132 of the repealed Limitation Act with modifications and alterations. Article 136 was amended on the recommendation of the Law Commission. The Law Commission felt that while under the old Limitation Act, an application for execution of a decree had to be made within a period of three years, or, if the certified copy of the decree was registered, within six years, under the amended law, the first execution application can be filed within a period of twelve years. The present Art. 136 covers all cases in respect of execu-tion of decrees, except a decree granting mandatory injunction. The prescribed period of limitation is twelve years and it would start, in the case of a decree or order, when it becomes enforceable.

7. In the instant case, the second appeal filed by the petitioner was dismissed in default in the year 1981. If the dismissal of the second appeal is the starting point of limitation, there would be no difficulty in holding the application for execution to be within time. However, the contention of the learned counsel for the petitioner was that as t

Click Here to Read the rest of this document