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2020 Supreme(All) 353
IN THE HIGH COURT OF ALLAHABAD
SAURABH LAVANIA, J.
Ajai Kumar - Appellant
Versus
State of U.P. Through Secretary - Respondent
SERVICE SINGLE No. 5994 of 2000
Decided On : 13-02-2020
Advocate Appeared:
For the Appellant : G.S.L. Varma, Kaushal Kishore
Point of Law
Petition was moved under Article 215 of the Constitution of India as there is no limitation provided under Article 215 of the Constitution of India.
Headnote:
Allahabad High Court Rules, 1952 – Rule 1, Rule 6 – Application has been filed under Rule 1 (viii) of Chapter-II read with Rule 6 of of the Allahabad High Court Rules, 1952 - It is for preparation of decree for execution of the judgment passed by this Court in the present writ petition – Held, Application can be moved only under Section 12 of the Act of 1971. No other provision is existing on the basis of which the appellant can claim benefits in respect of the period of limitation. If the appellant was well advised, then, the application ought to have been moved under Article 215 of the Constitution of India in the pending writ petition but that was never done. Further, appellant has to proceed before this Court under Section 12 of the Act of 1971 as the said powers are vested with this Court but the same was never invoked by the appellant – Application dismissed (Paras 12 and 13).
Facts of the Case
An application for execution of any decree (other than a decree granting a mandatory injunction) or order of any Civil Court can be filed within 12 years from the date when 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 or delivery in respect of which execution is sought, takes place.
Finding of the Court
Application can be moved only under Section 12 of the Act of 1971. No other provision is existing on the basis of which the appellant can claim benefits in respect of the period of limitation. If the appellant was well advised, then, the application ought to have been moved under Article 215 of the Constitution of India in the pending writ petition but that was never done. Further, appellant has to proceed before this Court under Section 12 of the Act of 1971 as the said powers are vested with this Court but the same was never invoked by the appellant.
Result: Application dismissed
JUDGMENT :
C.M. Application No. 8686 of 2020 (Application for Execution).
1. Heard Sri G.S.L. Varma, learned counsel for the petitioner and Sri Manish Pandey, learned State counsel.
2. The present application has been filed under Rule 1 (viii) of Chapter-II read with Rule 6 of Chapter VII of the Allahabad High Court Rules, 1952. It is for preparation of decree for execution of the judgment dated 01.04.2005, passed by this Court in the present writ petition.
3. The application, under consideration, was presented in the Registry of this Court on 21.01.2020.
4. From the prayer made in the application, under consideration, which is quoted below, it is evident that the relief sought is for preparation of decree for execution of the judgment and order dated 01.04.2005, passed by this Court in the present writ petition.
"Wherefore, it is most respectfully prayed, that this Hon'ble court of justice may graciously be pleased to direct the Registrar to prepare the decree on the basis of judgment dated 01.04.2005 and sent the same to the Civil court of the Competent Jurisdiction for the execution of the decree to make payment of the due salary to the petitioner w.e.f. 14.06.2000 till date, in exercise of powers conferred under Rule 1 (VIII) of Chapter II read with Rule 6 of Chapter VII of the Allahabad High Court Rules 1952, otherwise the applicant/petitioner will suffer irreparable loss and injury so that his life livelihood may not be further ruined."
5. For the purposes of disposal of the present application, it would be proper to mention that as per Article 137 provided in the Schedule to Limitation Act, 1963 (in short "Act, 1963"), an application for which no period of limitation is provided under the Act, 1963 shall be filed within three years from the date when the right to apply accrues, the same reads as under:-
| Description of application | Period of limitation | Time from which period begins to run |
| 137. Any other application for which no period of limitation is provided elsewhere in this Division. | Three years | When the right to apply accrues. |
6. In the present case, in my view, the right to prefer/move application for preparation of decree was accrued to the petitioner on 04.05.2005, the date of the judgment passed in the writ petition filed by the petitioner, and as such the application, under consideration, in my view, itself is not maintainable being highly barred by limitation.
7. For disposal of the present application, it is also relevant to mention that in view of the limitation provided under Article 136 of the Act, 1963 which is quoted below, an application for execution of any decree (other than a decree granting a mandatory injunction) or order of any Civil Court can be filed within 12 years from the date when 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 or delivery in respect of which execution is sought, takes place.
8. Proviso to it says that an application for the enforcement or execution of a decree granting a perpetual injunction shall not be subject to any period of limitation.
| 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 | [When] 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 or delivery in respect of which execution is sought, takes place: Provided that an application for the enforcement or execution of a decree granti |
