ORDER :

Dwarka Dhish Bansal, J.

This civil revision has been preferred by the applicants/judgment debtors 1-2 challenging the order dated 29-10-2015 passed by 1st Civil Judge Class-II, Sirmour, District Rewa in Execution Case No. 66-A/2006 whereby applicants/judgment debtors 1-2’s objection/application under Order 21, Rule 23(2) CIVIL PROCEDURE CODE for dismissal of execution proceedings as barred by limitation, has been dismissed.

2. Short facts of the case are that in the civil suit filed for declaration of title/share(s), partition and separate possession as well as for mesne profits, 1st Civil Judge Class II, Rewa in Civil Suit No. 66-A/74 passed judgment and decree on 31-3-1979, which was affirmed by District Judge, Rewa vide judgment and decree dated 27-8-1982 and finally the matter was decided on 1-2-1988 by High Court in SA No. 584/1982. Relevant paragraph 8 and 9 of the judgment passed in second appeal, are quoted as under :—

“8. To sum up, the factual position emerging from the discussion aforesaid is that the respondent is entitled to 1/10th share in the agricultural lands mentioned in ‘Scheduled-A’ of the plaint. Since this land is only 23.75 acres, her share would work out to 2.37 acres only, which she is entitled to obtain by partition. She also has 1/20th share in the house and well mentioned in ‘Schedule-B’ of the plaint, which she is entitled to get partitioned in accordance with law. As regards movable properties mentioned in ‘Schedule-B’ of the plaint, it is not proved that it was the joint family property and, therefore, she is not entitled to any share in the same.

9. Except for the modification aforesaid, the appeal fails and is dismissed. The partition will now be done as directed by the impugned- judgment and decree.”

3. Learned Counsel for the applicants/judgment debtors submits that after passing of judgment and decree on 1-2-1988 by High Court, application for execution was filed in the year 2006 i.e. after a period of more than 17 years, therefore, the execution proceedings cannot continue being barred by limitation. In support of her submissions learned counsel for the applicants placed reliance on Article 136 of the LIMITATION ACT as well as on the decision of Supreme Court in the case of Dr. Chranji Lal vs. Hari Das , (2005) 10 SCC 746.

4. Learned counsel appearing for the respondent 1/decree holder submits that there is no illegality in the impugned order because there is no limitation prescribed under the LIMITATION ACT for filing application for execution of preliminary decree of partition and it is duty of the Court to draw the final decree, which has yet not been drawn, hence no question of limitation arises at present. Learned counsel appearing for the respondent 1 in support of his submissions placed reliance on the decisions of Supreme Court in the case of Kattukandi Edathi Krishnan and another vs. Kattukandi Edathil Valsan and others , AIR 2022 SC 2841 and Shub Karan Bubna and others vs. Sita Saran Bubna and others , (2009) 9 SCC 689 .

5. Heard learned counsel for the parties and perused the record.

6. In the present case the rights of the parties were decided finally by the High Court as quoted aforesaid. As such it is clear that both the parties i.e. decree holder and judgment debtors, are having certain share(s) in the agricultural land as well as in the house property and in second appeal it was specifically observed that ‘except for the modification aforesaid, the appeal fails and is dismissed. The partition will now be done as directed by the impugned judgment and decree.’

7. Meaning thereby, it was the judgment and decree of trial Court, which was to be executed and not the judgment and decree passed by the High Court and as nobody had challenged the judgment and decree passed by High Court in the second appeal, so it was duty of the trial Court to draw the final decree.

8. In the case of Kattukandi (supra) Hon’ble Supreme Court has considered its previous judgment in the case of Shub Ka