Bombay High Court
Apoorva S/O Kamalkumar Methi And ... vs Amitkumar S/O Maheshbhai Patel ... on 29 June, 2016
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH
NAGPUR.
WRIT PETITION NO. 191 OF 2015
1] Apoorva Kamalkumar Methi,
aged 42 yrs., Occu. Business,
C/o Kamal Enterprise (Cassette
Shop) opposite house of Vadera,
Old Shri Talkies Road, Near
Railway Station, Gondia R/o Civil
Lines, Near Telephone Exchange,
Gondia.
2] Gaurav Kamalkumar Methi,
aged 40 yrs. Occu. Business,
R/o 303, Krishna Apartment,
Mama Chowk, Civil Lines,
Gondia. PETITIONERS.
VERSUS
1] Amitkumar Maheshbhai Patel,
aged 40 yrs. Occu. Business.
2] Nimeshkumar Maheshbhai Patel,
aged 37 yrs., Occu. Business, through
Registered Power of Attorney holder
Maheshbhai Chhotabhai Patel, aged
61 yrs., Occu. Business, R/o at
Bhagwati Kripa Building, at Kudwa
Line, Gondia. RESPONDENTS.
Shri M. R. Joharapurkar, Advocate for the petitioners.
Shri A. N. Vastani, Advocate for the respondents.
CORAM: A. S. CHANDURKAR J.
Dated : JUNE 29, 2016.
ORAL JUDGMENT:
Rule. Heard finally with consent of learned counsel for the
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parties.
2] The order dated 12.09.2014 passed in Regular Darkhast no. 66 of
2013 thereby rejecting the application for dismissal of the execution
proceedings is under challenge in this writ petition. The respondents are the
original plaintiffs who had filed suit for permanent and mandatory injunction
along with a claim for damages. This suit was decreed on 10.10.2002. The
petitioners challenged the aforesaid decree in Regular Civil Appeal No. 106 of
2002. Though an application for staying the effect and operation of the
decree passed by the trial Court was moved, the stay as prayed was not
granted. The appeal came to be dismissed subsequently. The petitioners
then filed Second Appeal No. 321 of 2010 and on 16.09.2010 the said
Second Appeal was dismissed. The decree passed by the trial Court was thus
confirmed., The decree holders filed execution proceedings on 13.11.2013.
In these proceedings the petitioners filed an application for dismissing said
proceedings on the ground that the same were barred by limitation. By the
impugned order the executing Court rejected said application. A review
application filed by the petitioners was also dismissed.
3] Shri M. R. Joharapurkar, the learned counsel for the petitioners
submitted that as decree was passed by the trial Court on 10.10.2002 and the
execution of the said decree was not stayed during the pendency of either the
first appeal or second appeal, the execution proceedings ought to have been
filed within a period of three years, from the date of the decree as per Article
135 of the Limitation Act, 1963 (for short, the said Act). He submitted that
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the executing Court without considering this relevant aspect rejected the
application in question by treating the period of limitation to be three years
from the dismissal of the second appeal.
Shri A. N. Vastani, the learned counsel for the respondents
supported the impugned order. According to him the judgment debtor had
not pointed out before the executing Court as to whether decree passed by
the trial Court had been stayed or not. He submitted that in the second
appeal filed by the petitioners, the execution of the decree was stayed by
order dated 03.08.2010 which stay operated till 16.09.2010. He, therefore,
submitted that the executing Court was justified in rejecting the application
for dismissal of the execution proceedings.
4] I have heard the respective counsel for the parties and perused
the documents on record. The record indicates that after the suit was
decreed on 10.10.2002 though the prayer for staying its execution was
moved by the petitioners such order of stay was not passed. Thus from the
date of the decree it was necessary for the decree holders to have initiated
execution proceedings within a period of three years from 10.10.2002. The
provisions of Section 15 of the said Act that were pressed into service on
behalf of the respondents cannot be made applicable in the facts of the
present case in the absence of any order of stay. As per the provisions of
Article 135 of the said Act it is clear that the execution proceedings filed on
13.11.2013 were barred by limitation. The executing Court committed a
serious error in not allowing the application below Ex. 11 seeking dismissal
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of the execution proceedings.
5] In view of aforesaid the following order is passed:
The orders passed below Ex. 11 as well as review application
below Ex. 19 are set aside. The application below Ex. 11 stands allowed and
it is held that the proceedings in Regular Darkhast No. 66 of 2013 are liable
to be dismissed as being barred by limitation. The same stand dismissed as
such. Rule is made absolute in aforesaid terms. No costs.
ig JUDGE
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