Execution petition filed by LRs not barred by limitation.

The legal heir of the deceased first defendant is the revision petitioner predecessor of the respondents. The suit filed by the decree-holder was one for partition. In execution of the decree, it is contended by the judgment-debtors that the execution is barred by limitation, because of expiry of 12 years from the date of the decree. By the impugned order, the lower court rejected the contention and allowed the execution to be proceeded with. The present revision is filed by the legal heirs of the first defendant, challenging the said finding.

2. The material facts are as follows:

The preliminary decree for partition was passed on 9. 1969. Final decree was passed on 20.11.1970 as per I.A.No.82 of 1970. Being a partition suit, the parties are bound to furnish stamps for drafting the decree. On 22. 1972, the District Court, Nagapattinam issued notice to the parties to furnish stamp papers, granting time till 13. 1992. The decree-holder did not furnish any stamp and no decree was drafted. On 11. 1977, the original decree-holder died. On 27. 1983, application was filed by legal representatives of the decree-holder to implead themselves as additional plaintiffs and, on 22. 1984, the same was ordered. The legal representatives were impleaded on 3. 1994. After incorporating the names of the legal heirs of the plaintiff, an execution application was presented before the District Court on 25. 1984. In the meanwhile, there was a civil revision petition before this Court, namely, C.R.P.No.2374 of 1984 against the order of impleadment.The same was dismissed on 10. 1984. On 112. 1984, an order was passed in the execution petition holding that the execution petition is barred by limitation since it was filed beyond 12 years. A revision was filed against the said order as C.R.P.No.2000 of 1985. On 3. 1989, this Court set aside the order of the executing court and directed that the question of limitation should be considered afresh. By the impugned order dated 17. 1989 the lower court held that the execution petition is not barred by limitation.

3. Even though the order of remand directs that the questions of limitation as well as adverse possession should be considered. The only point that was urged before me was on the question of limitation.

4. It is not disputed that Art.136 of the Limitation Act applies. It says, ‘for execution of a decree other than a decree for mandatory injunction or order of a civil court, 12 years where the order or decree becomes enforceable or where the decree subsequent order directs.... ‘The argument that was put forward before me is that the decree becomes enforceable from the date of judgment, and if the period is calculated from that date, the execution petition is barred by time. On the contrary, the learned counsel for the decree-holder submitted that the decree becomes enforceable in a partition suit only when a decree is engrossed on the stamp papers since it is an instrument under the Stamp Act. Unless it is properly stamped, it cannot be an instrument which could be enforced, and hence the period of time will begin only after the decree was engrossed. If the period is calculated thereafter, according to the learned counsel for the decree-holder, the execution petition is within time. Various Authorities have been cited by learned counsel on both sides as to when the decree becomes enforceable.

5. Before taking into consideration the various decisions, it is better to consider the scope of O.21, Rule 11 of the Code of Civil Procedure. O.21, Rule 11(1), C.P.C. speaks about the oral application for execution and Sub-rule (2) provides for a written application. In the case of written application, it is directed that the execution petition shall contain the particulars in tabular form as noted therein. Sub-rule (3) is an important provision which says that the court to which the application is made under Sub-rule (2) may require the applicant to produce a certified copy of the decree. (Italics su