Prakash Bhaskar Kulkarni vs Apparao Janardhan Vyavahare ...
2023 Latest Caselaw 2709 Bom

                                            1 of 5                             9-wp-7673-22


             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     CIVIL APPELLATE JURISDICTION

                   CIVIL WRIT PETITION NO. 7673 OF 2022

 Prakash Bhaskar Kulkarni
 Through Assignee purchaser of suit property
 Kantilal Annaso More                                                 ..Petitioner.

         Versus

 Apparao Janardhan Vyavahare
 since deceased Through Legal Heirs                                   ..Respondents

                                      __________

 Mr. Machhindra A. Patil for Petitioner.
                             __________

                                CORAM : SARANG V. KOTWAL, J.

DATE : 20 MARCH 2023

PC :

1. The Petitioner has challenged the order dated

15/01/2022 passed by Jt. C.J.J.D., Pandharpur below Exh.1 read

with Exhibit 40 in R.D.No.38 of 2014. The Petitioner claims to be

the Assignee of the original Plaintiff who had filed R.C.S.No.409 of

1991 before the 3rd Jt. C.J.J.D. Pandharpur. The original Plaintiff

was Prakash Bhaskar Kulkarni. Kantilal Annaso More claims to be

his Assignee and purchaser of the suit property. The R.C.S.No.409

Gokhale

2 of 5 9-wp-7673-22

of 1991 was decreed on 31/03/2000. The order passed in the suit

reads thus:

"1. Suit is decreed with cost.

2. Defendants No.1 to 10 are hereby directed to hand over possession of encroached area which is from western side of gat no.180 from east-west side at about 78Are land as per the map produced at Exh.46 to the plaintiff within three months from the date of this order.

3. Defendant no.1 to 10 are hereby directed that they should not be obstruct the peaceful possession of the plaintiff over suit property themselves or through any agent.

4. Decree be drawn up accordingly."

2. The original Plaintiff had filed Darkhast No.63 of 2006.

That application was filed on 13/11/2006. On 29/08/2011, the

executing Court had issued possession warrant. Subsequently, on

04/03/2013, the Court observed that the Decree Holder and his

counsel were absent. The Decree Holder had failed to take steps in

spite of ample opportunities. It showed that the Decree Holder was

not interested in the matter and hence, the Execution Petition was

dismissed in default. This order was passed on 04/03/2013. After

3 of 5 9-wp-7673-22

that, the present Petitioner who claims to be Assignee of the

original Plaintiff filed another execution application vide

R.D.No.38 of 2014 on 21/11/2013. Learned Jt. C.J.J.D.,

Pandharpur vide his order dated 15/01/2022 dismissed that

execution application. It was observed that the execution

application was not filed within the period of limitation of 12

years. Learned Judge relied on the two Judgments of the Hon'ble

Supreme Court as follows:

i) Ram Bachan Rai and others Vs. Ram Udar Rai and others reported in AIR 2006 sc 2248.

ii) Manohar Shankar Nale and others Vs. Jaipalsing Shivlalsing Rajput and other reported in AIR 2008 SC 429.

3. Learned Judge observed that the period of limitation for

execution of Decree prescribed in Article 136 of the Limitation Act

is 12 years from when the Decree became enforceable. Since the

application for execution i.e. R.D.No.38 of 2014 was filed on

21/11/2013, beyond the period of 12 years from the date of

Decree, the execution application was barred by limitation and

thus, the execution petition was dismissed.

4 of 5 9-wp-7673-22

4. Learned counsel for the Petitioner submitted that, Article

136 of the Limitation Act mentions that, when the Decree was for

perpetual injunction, it would not be subject to any period of

limitation. He submitted that, since the Petitioner is the Assignee

of the Plaintiff, he has right to file the Darkhast petition.

5. I have considered these submissions. Learned counsel for

the Petitioner could not justify as to why the second Darkhast was

filed in spite of the fact that the original darkhast filed by the

original Plaintiff was dismissed by the executing court. The Decree

in the suit essentially was for handing over the possession of the

encroached area to the Plaintiff. Injunction was a consequential

order after the possession was handed over. Since the first part of

the Decree could not be executed because the execution

proceeding was filed by the present Petitioner after the period of

12 years of the Limitation was over, the proviso to Section 2 of the

Article 136 of the Limitation Act was not applicable. In any case,

there is a clear attempt made by the Petitioner to file this second

execution application, though first execution application filed by

the original Plaintiff was disposed of. I do not see any infirmity in

5 of 5 9-wp-7673-22

the impugned order and, hence, I do not find any merit in the

Petition.

6. The Petition is dismissed.

(SARANG V. KOTWAL, J.)