Salim Mohammad Bagwan vs Rakhmaji Kondiba Shinde
2021 Latest Caselaw 2041 Bom

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ISM
                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          CIVIL APPELLATE JURISDICTION

                              WRIT PETITION NO. 12002 OF 2019

      Salim Mohammad Bagwan                                          ....Petitioner

              V/s.

      Rakhmaji Kondiba Shinde                                        .....Respondent

      Mr. Rahul Kadam for the Petitioner

                               CORAM :    NITIN W. SAMBRE, J.

                               DATE:      FEBRUARY 1, 2021.

      P.C.:

      1]      Petitioner suffered a Decree for specifc performance in Regular

Civil Suit No. 152 of 1987 and said Decree reads thus:

"O R D E R

The suit is Decreed in the following terms:

(a) The defendant is ordered to execute registered sale deed in respect of the suit property by obtaining requisite permission from the concern authorities within the period of next 6 months and we plaintiff is hereby ordered to deposit balance of consideration amount of Rs. 300/- and Rs. 150/- towards provisional expenditures towards execution of the sale deed.

(b) In case of the defendant's failure to execute the said

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sale deed be executed by appointing the Nazir of the Court, as the Court Commissioner, after obtaining necessary permission if granted from the concern authorities for such sale deed.

(c) The defendant is ordered to bear his own costs and to pay costs of the plaintiff in the suit to him.

Preliminary Decree be drawn accordingly".

2] In the aforesaid background Respondent took out Regular

Darkhast No. 20 of 2001 for execution of the Decree in which, below

exhibit 1 and 25 the Court allowed the prayer of the Decree Holder

and rejected the objection of the judgment-debtor that the execution

proceedings are initiated beyond the period of. It is further ordered

that Decree holder will be entitled to get the Decree executed that is

sale deed executed through Court Nazir by depositing balance

consideration of Rs. 300/- and Rs. 150/- towards provisional

expenditure for execution of the sale deed.

3] It is this order which is questioned in the Petition by judgment-

debtor. By inviting attention of this Court to the provisions of Article

136 of the Limitation Act, learned counsel for the judgment-debtor

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would urge that the limitation prescribed for execution of Decree is

12 years from the date Decree become enforceable.

4] He would urge that the Decree under execution was based on a

contract of sale dated 11/12/1968. Based on same Regular Civil Suit

No. 152 of 1987 came to be Decreed on 12/10/1988. As such

according to him at the most Decree could have been executed by

11/10/2000. As such execution proceedings are barred by limitation.

So as to substantiate his contentions he has relied on provisions of

Article 136 of the Limitation Act and also the date of passing of the

Decree, proceedings and also the Decree under execution.

5] He would also draw support from the judgment of this Court in

the matter of Om Prakash Navani and another Vs. Juno Changas

Pereira and others [2003(3) Mh.L.J.] so as to claim that the Decree is

enforceable from the date when it was made and the execution

proceedings initiated after a period of 12 years from the said date are

barred by the limitation.

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6] I have carefully perused the Decree which is already reproduced

herein above and also the execution proceedings initiated by the

Respondents. The Decree contemplates directions to the Petitioner

judgment-debtor to execute the registered sale deed in respect of the

suit property by obtaining requisite permission from the concerned

authorities within period of six months. There is corresponding

obligation placed on the Respondent-Decree holder to deposit balance

consideration of Rs. 300/- and provisional expenses of the sale deed.

7] As far as the obligation on the Decree holder is concerned there

is no specifc outer time fxed for the same. However even if we co-

relate the said obligation of the Decree holder with that of frst part of

the Decree that is obligation on the part of the Defendant, then the

only inference that can be drawn is the Defendant frst to comply on

his part of obligation that is obtaining permission for sale from the

competent authority and thereafter the plaintiff to deposit the

amount.

8] Admittedly till this date, the petitioner judgment-debtor has not

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obtained the permission from the competent authority and that being

so Plaintiff is required to approach the Court for execution of the sale

deed through the Court.

9] A judicial note is required to be taken of the fact that vide

Government resolution dated 14 march 2018, the permission of the

competent authority is no more required to take Decree to its logical

end i.e. requirement of the permission of the competent authority for

execution of the sale deed appears to be diluted.

10] The following dates are relevant for deciding the issue raised

before this Court.

11] The Decree was passed on 10/10/1988. The period of 12 years

from the said date as prescribed under Article 136 of the Limitation

Act is considered, same will come to an end on 12/10/2000.

Admittedly proceedings for execution are initiated by the Decree

holder in 2001 that is the date on which the Darkhast came to be

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registered. However this Court is required to fnd out the date on

which Decree becomes executable.

12] There is an obligation on the Petitioner Judgment-debtor to

obtain permission of the competent authority and then to execute the

sale deed and same was required to be done within period of 6

months. Petitioner has not taken any steps for the same and the

Decree further provides that in case Defendant fails to execute the

sale deed, the sale deed was directed to be executed by appointing

Court Nazir as the Court Commissioner after obtaining necessary

permission from the concerned authorities.

13] As such, in case if the Judgment-Debtor has not complied with

Decree, the same in express words does not provide for the

responsibility of the Plaintiff or the Court Nazir to obtain permission

of the Competent Authority. Admittedly there is no corresponding

responsibility on the Decree holder to obtain the permission from the

competent authority in the Decree under execution and that being so

either it is for the Judgment-debtor or the authorities of the Court to

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process such permission and then to execute the sale deed in favour

of the Respondent.

14] In the case in hand if we consider the very conduct of the

Judgment debtor in the backdrop of the submissions made by the

learned counsel, the petitioner is trying to frustrate the Decree by his

own conduct i.e. on one hand he is not discharging with the

obligation casted on him by the Decree under execution and on the

other hand he is claiming that Decree is not executable as the same

is barred by limitation. In the case in hand the limitation as is

prescribed under Article 136 of the Limitation Act will start running

from the point of permission being granted by the authorities for

execution of the sale deed.

15] It is the case of the Petitioner himself that till date there is no

permission granted by the competent authorities for execution of the

sale deed and there is no more requirement in view of Government

policy of 2018 for such permission to execute the sale deed.

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16] As such the executing Court was justifed in holding that

execution proceedings are within limitation and not barred by

limitation prescribed under Article 136 of the Limitation Act.

17] As far as the judgement relied by the petitioner in the matter of

Om Prakash Navani [cited supra] is concerned, in that case Decree

under execution was a consent Decree and there was no term

incorporated in the Decree of taking permission from competent

authority for execution of the sale deed. As such facts of said

judgment will be of hardly any support to the case of the petitioner.

18] There is no substance in the petition, petition as such fails

stand dismissed.

[NITIN W. SAMBRE, J.]