The main legal point established in the judgment is the application of Article 136 of the Limitation Act, 1963 for the execution of decrees and the impact of appellate court decisions on the limitation period for filing execution applications.

SUDHIR NARAIN, J.

( 1 ) THIS writ petition is directed against the order dated 22-11-2000 whereby the appellate Court held that the execution application filed by the contesting respondents was within time.

( 2 ) BRIEFLY stated the facts are that the petitioners filed suit No. 260 of 1959 for partition against defendant-respondents Nos. 2 to 8. The Court passed a preliminary decree on 25-4-1962. The final decree was prepared on 7-5-1968.

( 3 ) THE defendant-respondents applied for execution of the final decree on 6-8-1978, which was registered as Execution Case No. 279 of 1968. The plaintiff-petitioners filed Civil Appeal No. 502 of 1968 against the judgment of the trial Court. The appeal was dismissed on 21-3-1969. The petitioners preferred Second Appeal against this order. The High Court allowed the appeal and remanded the case to the appellate Court to decide the appeal afresh. The lower appellate Court, after remand of the matter, again dismissed the appeal on 4-1-1974. During the pendency of the above appeal the execution application No. 279 of 1968 was rejected by the executing Court on 19-4-1971.

( 4 ) THE petitioners preferred Second Appeal No. 281 of 1974 against the judgment of the lower appellate Court dated 4-1-1974. The second appeal was dismissed by the High Court on 18-4-1985. The decree in pursuance of the judgment of the High Court was drawn on 30-10-1986.

( 5 ) THE defendant-respondents filed application for execution of the decree, passed by this Court, on 26-3-1997. The petitioners filed objection to this application on the ground that it was barred by limitation. The executing Court rejected the application vide order dated 1-5-1999 on the ground that the application was barred by time. The respondents preferred appeal against the said order before the Court below. Respondent No. 1 has allowed the appeal by the impugned order dated 21-11-2000 holding that the execution application filed by the0 defendant-respondents was within time.

( 6 ) I have heard Sri Pankaj Mithal learned counsel for the petitioners and Sri Pramod Kumar Jain learned counsel for the contesting respondents.

( 7 ) THE final decree in the partition suit No. 260 of 1959 was prepared on 7-5-1968. The provisions of Limitation Act, 1963 will be applicable for the purpose of counting the limitation. Article 136 shall be applicable for submitting execution application before the executing Court. Article 136 reads as under :-"136. For the execution of any decree (other than a decree granting a mandatory injunction) or order or any civil Court. Twelve yearswhen the decree or order becomes enforceable or where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods when default in making the payment of delivery in respect of which execution is sought, takes place :provided that an Application for the Enforcement or Execution of a Decree granting a Perpetual injunction shall not to subject to any period of limtation.

( 8 ) THE contention of the learned counsel for the petitioner is that lower appellate Court had dismissed the appeal on 4-1-1974. The petitioners preferred Second Appeal No. 481 of 1974 against the judgment of the lower appellate Court. The High Court dismissed the second appeal on 18-4-1985. The High Court had not passed any order staying the operation of the decree passed by the Courts below and therefore the limitation started running from 4-1-1974 for filing the execution application and as the execution application was filed on 26-3-1997 it was barred by time.

( 9 ) THE question is whether the decree drawn in pursuance of the judgment of the High Court passed on 18-4-1985 shall be taken as the date when the decree becomes enforceable or the date of the judgment of the lower appellate Court delivered on 4-1-1974. Similar controversy was raised in M/s. Banshidhar Durga Dutta v. Loonkaran Sethia, 1983 ALJ 557, where the execution application