Gujarat High Court
Legal Heirs Of Deceased Pragjibhai ... vs Pushpaben Mithusinh Parmar on 11 September, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12455 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J. SHELAT
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Approved for Reporting Yes No
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LEGAL HEIRS OF DECEASED PRAGJIBHAI KHODABHAI & ORS.
Versus
PUSHPABEN MITHUSINH PARMAR & ORS.
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Appearance:
MR. DEEPAK N KHANCHANDANI(7781) for the Petitioner(s) No.
1,1.1,1.2,1.3,2,3,4
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 11/09/2025
ORAL JUDGMENT
1. Heard learned Advocate Mr. Deepak N. Khanchandani for the
petitioners at length.
2. The present writ application is filed under Article 227 of the
Constitution of India, seeking the following reliefs:
"a) YOUR LORDSHIPS may be pleased to admit and allow this
Petition.
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b) YOUR LORDSHIPS may be pleased to issue a writ of mandamus
or certiorari or any other appropriate writ, order and or directions
to quash and set aside the order dated 04/08/2025 passed by the
Ld. Additional Civil Judge, Palitana in Execution Application No.15
of 2019 at Annexure-A in the interest of justice.
c) Pending admission, hearing and final disposal of the Petition,
YOUR LORDSHIPS may be pleased to stay and suspend
implementation, execution & operation of the order dated
04/08/2025 passed by the Ld. Additional Civil Judge, Palitana in
Execution Application No. 15 of 2019 at Annexure-A in the interest
of justice.
d) YOUR LORDSHIPS may be pleased to grant any other and further
reliefs as may be deemed fit and proper in the interest of justice."
3. As far as possible, the parties will be referred to as per their
original position before the Trial Court.
4. THE SHORT FACTS OF THE CASE:
5. The petitioners herein are judgement debtors of Execution
Application No. 15 of 2019, filed by predecessor in interest of
respondent No. 1 herein, in pursuance to the judgment and decree
passed by the District Court on 22nd January, 1993 against which
Second Appeal came to be filed by them before this Court, which
was disposed of being abated on 26.08.2011. It appears that such
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second appeal was listed with other cognate second appeals, and
later on appears to have been dismissed for non-prosecution by this
Court vide its common order dated 25.08.2022.
6. As such, the facts are not much in dispute, but to decide the issue
germane, it observed as under:
6.1. The predecessor in interest of respondent No. 1 herein filed
Regular Civil Suit No. 33 of 1981 against the predecessor of the
petitioners and rest of the respondents before the Civil Judge,
Junior Division, Palitana. The records suggest that the Trial Court
vide its preliminary decree dated 11th January, 1985, partly
allowing the suit in favor of the plaintiff.
6.2. The plaintiff appears to have been aggrieved having filed appeal
before the District Court, which came to be allowed on merit in his
favor on 22nd January, 1993. The respondents of the appeal
preferred second appeal i.e. Second Appeal No. 115 of 1993 (for
the present case) before this Court. It is informed to this Court that
no stay was granted in favor of the appellants of such second
appeal i.e. the judgement debtors.
6.3. This Court vide its order dated 26th August, 2011, disposed of the
second appeal, having been abated as the sole respondent (original
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plaintiff) of such appeal reported died, but his legal heirs were not
brought on record. The restoration application of such appeal also
came to be dismissed on 4th February, 2022.
6.4. Nonetheless, surprisingly, along with other cognate second appeals
being Second Appeal/111 & 114/1993, aforesaid Second Appeal
No. 115 of 1993 came to be listed before this Court, which was
also dismissed for non-prosecution vide its order dated 25th
August, 2022.
6.5. In the meantime, Execution Application No. 15 of 2019 in question
came to be filed by the predecessor in interest of the respondent
No. 1, wherein, two sets of objections were filed by the petitioners
herein, being judgement-debtors. The bone of objections was, the
execution application itself prematurely filed as the second appeal
preferred by the judgement debtors, is pending before the High
Court. But, on the next breath, another set of objections filed by
other judgement-debtors (some of petitioners herein), touched its
maintainability on the ground that it is time-barred. According to
them, execution is filed after the period of limitation so prescribed
as per Limitation Act, 1963 (herein after referred as "the Act,
1963").
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6.6. The Executing Court vide its order dated 4th August, 2025, turned
down such objections and passed the impugned order whereby
possession warrant as per Order 21 Rule 30 read with Rule 35 of
Code of Civil Procedure Code, 1908 (herein after referred as
"CPC") came to be issued. Such warrant is ordered to be executed
through competent officer, if so required with the help of police.
The aforesaid order passed by the Executing Court, now, impugned
in the present writ application.
7. SUBMISSIONS OF THE PETITIONERS/JUDGEMENT
DEBTORS:
7.1. Learned Advocate Mr. Khanchandani, appearing for some of the
original judgement debtors, would submit that the execution
application so filed by the predecessor in interest of respondent
No.1 is ex-facie time-barred, inasmuch as the decree passed by the
Appellate Court on 22nd January, 1993, having not stayed by this
Court in second appeal, was enforceable and required to have been
enforced within 12 years from passing of such decree. It is
submitted that, undisputedly, the execution came to be filed in the
year 2019, thus, as per Article 136 of the Act, 1963, it is hopelessly
time-barred.
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7.2. Learned Advocate Mr. Khanchandani would submit that when the
decree was enforceable, having not stayed by the Appellate Court
i.e. the High Court, there was no reason for the decree holder not to
execute it and to wait till final outcome of the proceeding of
second appeal instituted by the judgement debtors.
7.3. Learned Advocate Mr. Khanchandani would further submit that
merely because this Court vide its order dated 26th August, 2011,
disposed of the second appeal, having declared it abated, would not
give fresh period of limitation to the decree holder. It is submitted
that in the present case, as per Article 136 of the Act, 1963, 12
years would be commenced, when and from the decree became
enforceable i.e. 22nd January, 1993.
7.4. Learned Advocate Mr. Khanchandani would respectfully submit
that in light of the aforesaid undisputed facts, the order passed by
the Executing Court impugned in the present writ application is
without jurisdiction, inasmuch as execution itself is not
maintainable in the eye of law.
7.5. To buttress his argument, learned Advocate Mr. Khanchandani
would rely upon the decision of the Honorable Supreme Court of
India, in the case of Ratansingh V/s. Vijaysingh and others
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reported in (2001) 1 SCC 469.
7.6. Making the above submissions, learned Advocate Mr.
Khanchandani would request this Court to allow the present writ
application.
8. No other and further submissions are made.
POINT FOR DETERMINATION
9. The short but interesting question falls for my consideration as
under:
(i). Whether in the facts and circumstances of the present case,
the execution application filed by the predecessor in interest
of respondent No. 1 in year 2019 to execute the decree
passed in year 1993 maintainable in law having filed within
a period of limitation as per the Limitation Act, 1963 or not?
ANALYSIS
10. The facts which are observed hereinabove are not in dispute. It
remained undisputed fact that vide judgment and preliminary
decree dated 11th January, 1985, the suit filed by the predecessor
in interest of respondent No. 1 came to be partly allowed.
Although, it is not clear from the record and learned Advocate Mr.
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Khanchandani would not able to make any statement as to whether
any final decree was thereafter passed in the matter or not and so
also, what was a reason of passing preliminary decree by Trial
Court. Be that as it may, the Trial Court vide its partially
preliminary decree drawn on 11th January, 1985, partly allowed
the suit in question.
11. Such decree came to be merged in the decree passed in favor of the
original plaintiff - predecessor in interest of respondent No.1
herein, vide judgment and decree dated 22nd January, 1993,
having so passed by the Appellate Court.
12. The judgement debtors appear to have filed Second Appeal No.
115 of 1993 (in relation to the present execution proceeding),
wherein, it is reported to this Court in present writ application, that
no stay was granted against enforcement of decree passed by the
Appellate Court. It is also remained undisputed on record that vide
order dated 26th August, 2011, this Court, having recorded the fact
that the sole respondent i.e. the plaintiff, died on 12th August,
1996, but his legal heirs were not brought on record, thus, the
appeal stands abated and was disposed of accordingly. Finally, as
observed herein above, along with other cognate second appeals,
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the aforesaid appeal was also dismissed for non-prosecution by this
Court vide its order dated 25th August, 2022. [Although, it was not
clear as to how such appeal was tagged along with other cognate
appeals when already disposed of as abated on 26th August, 2011].
13. Be that as it may, in the meantime, the execution proceeding in
question appears to have been filed in the year 2019, being
Execution Application No. 15 of 2019, wherein, objections as
aforesaid were made by the judgement debtors, which were
answered in the negative by the Executing Court against them.
14. In light of the aforesaid peculiar facts and circumstances of the
case, it needs to be ascertained as to whether the decree which is
sought to be executed by way of aforesaid execution proceeding
can be stated to be filed within period of limitation so prescribed
under the Act, 1963.
15. The relevant provision of the Act, 1963 as regards period to file
execution proceeding, would be Article 136 of the Act, 1963,
which reads as under:
Description of application Period of Time from which period
limitation begins to run
136. For the execution of Twelve years [When] the decree or order
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any decree (other than becomes enforceable or
a decree granting a where the decree or any
mandatory injunction) subsequent order directs
or order of any civil any payment of money or
court. 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 granting a
perpetual injunction shall
not be subject to any period
of limitation.
15.1. A bare reading of the aforesaid Article 136 of the Act, 1963 would
indicate that when the decree becomes enforceable, the period of
limitation would start to run. It is true that in the present case, the
decree passed by the Trial Court would merge with the decree
passed by the Appellate Court, having allowed the appeal filed by
the original plaintiff on 22nd January, 1993. This would be the
starting point for the enforcement of the decree and the decree
holder could have executed the decree within 12 years from such
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period i.e. 22nd January, 1993.
16. It is also remained undisputed as observed hereinabove that the
judgement debtors having filed second appeal in the year 1993,
though there was no stay, but it was remained pending for years
and ultimately, stands abated on 26th August, 2011. Subsequently
also, rightly or wrongly, such appeal was dismissed for non-
prosecution by this Court vide its order dated 25th August, 2022.
17. Thus, in view of said facts, it requires to be ascertained as to from
which date the decree was enforceable and any fresh period of
limitation began to run after passing of order dated 26th August,
2011 by this Court.
18. To resolve this issue germen in the matter, it would be apt to refer
to and rely upon the decision of the Honorable Supreme Court of
India in the case of Bhag Mal alias Ram Bux and others V/s.
Munshi (Dead) By lrs. And others reported in (2007) 11 SCC
285, wherein, in somewhat similar situation and after appreciating
the nitty-gritty of the provisions of the Limitation Act, it observed
and held thus:
"2. The fact of the matter is not in dispute.
The appellants are sons of one Sher Singh. Sher
Singh alienated the suit property to one Bansi
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by a registered deed of sale dated 24-7-1953.
The legality or validity of the said deed of
sale came to be questioned, inter alia, on the
premise that the same had been executed without
any consideration and legal necessity by the
appellants herein, who are the legal heirs and
representatives of the said Sher Singh by
filing a suit. The said suit was dismissed.
However, on an appeal preferred thereagainst by
the appellants, the same was decreed by a
judgment and decree dated 11-4-1969. A second
appeal there against was preferred by the
respondents herein before the High Court which
was marked as RSA No. 1121 of 1969.
3. Sher Singh died during the pendency of the
second appeal on 25-2-1973. Bansi also died
during the pendency thereof on 4-10-1976.
4. As the heirs and/or legal representatives of
Bansi were not brought on record within the
prescribed period of limitation, the appeal was
dismissed as having abated by an order dated
14-10-1977. After the death of Bansi,
therefore, the appellants herein inherited the
suit land. A suit for possession in terms of
the Punjab Limitation (Customs) Act, 1920 was
filed by the appellants herein on 3-11-1977
before the Sub-Judge, IInd Class Gurgaon. The
said suit was decreed. The appeal preferred
theregainst was dismissed by a judgment and
decree dated 26-3-1979. In the second appeal
preferred by the respondents herein, the
question which arose for consideration before
the High Court was as to whether having regard
to the fact that the order dated 14-10-1977 in
terms whereof abatement of the second appeal
was recorded being not a decree within the
meaning of Order 22 CPC, the appellants were
obligated to file a suit within a period of
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three years from the date of the judgment and
decree passed by the first appellate court or
not.
5. Opining that an order directing abatement of
suit/appeal does not amount to adjudication
thereof on merit, it was held that the period
of limitation would start running from 11-4-
1969, stating:
"Therefore, I find that the learned
counsel for the appellants has rightly
argued that both the courts below fell in
error in arriving at a conclusion that the
decrees passed by the courts below had
merged with the decree of this Court and
that period of limitation is to be
reckoned from 14-10-1977 when judgment,
Exhibit P-4 was rendered. 25-2-1973 when
Sher Singh died is the date later than 11-
4-1969 when the respondents obtained
decree from the learned Additional
District Judge, Gurgaon. Therefore, even
if period of limitation is reckoned from
25-2-1973, that period of three years for
filing a declaratory suit came to an end
long before 3-11-1977 when the suit was
filed by the respondents. Hence, the suit
filed by the respondents was clearly
barred by limitation and on that score,
deserved to be dismissed. The view taken
by the courts below is erroneous in the
eye of the law and cannot be allowed to
sustain."
10. Section 8 of the said Act reads as under:
"8. Benefit of declaratory decree.--When
any person obtains a decree declaring that
an alienation of ancestral immovable
property or the appointment of an heir is
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not binding on him according to custom,
the decree shall enure for the benefit of
all persons entitled to impeach the
alienation or the appointment of an heir."
11. Article 2 appended to the Schedule of the
said Act reads as follows:
"2. A suit for possession
of ancestral immovable
property which has been
alienated on the ground
that the alienation is
not binding on the
plaintiff according to
custom--
(a) if no declaratory 6 years As above
decree of the nature
referred to in Article
1 is obtained
(b) if such 3 years The date on
declaratory decree is which the
obtained. rights to
sue accrues
or the date
on which the
declaratory
decree is
obtained,
whichever is
later."
12. It is no doubt true that in terms of
Section 3 of the Limitation Act, 1963 as also
the provisions of the said Act, a suit must be
filed within the prescribed period of
limitation. The civil court has no jurisdiction
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to extend the same.
13. However, the provisions of the Limitation
Act should be construed in a broad manner.
Different provisions of the Limitation Act may
require different constructions, as for
example, the court exercises its power in a
given case liberally in condoning the delay in
filing an appeal under Section 5 of the
Limitation Act. However, even for the purpose
of delay the grounds for condonation of delay
may have to be taken into consideration for
examining its correctness by the court in each
case. We, however, may not be understood to lay
down a law that the same principle would apply
in case of construction of Section 3 of the
Limitation Act.
14. The provisions of Article 2(b) of the 1920
Act provides for two starting points of
limitation; (1) the date on which the right to
sue accures, and (2) the date on which
declaratory decree is obtained, whichever is
later. There is, therefore, no fixed period of
limitation. The period of limitation, thus,
would be reckoned from the date on which the
right to sue has accrued or declaratory decree
is obtained.
19. The question which arises for our
consideration is as to what would be the date
on which declaratory decree can be said to have
been obtained by the appellants.
20. Mr Gupta, learned counsel appearing on
behalf of the respondents himself has relied
upon a decision in Abdulla Asghar Alia v.
Ganesh Das Vig [(1932-33) 60 IA 83 : AIR 1933
PC 68] wherein the Judicial Committee, in no
uncertain terms stated the law as under: (IA p.
89)
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"In the case now before their Lordships it
is manifest that there was an order of the
appellate court, and that it did deal
judicially with the matters before it. The
Judicial Commissioner considered the
judgment-debtor's contention that his
appeal had not abated, and held that it
had. He considered the prayer for revival
of the arbitration and refused it. He
rejected the application to set aside the
abatement. Whether the order made was
right or wrong is immaterial: there was no
appeal against it, and it was in the
circumstances clearly final. Their
Lordships think that when an order is
judicially made by an appellate court
which has the effect of finally disposing
of an appeal, such an order gives a new
starting point for the period of
limitation prescribed by Article 182(2) of
the Act of 1908."
21. In Ajudhia Prasad v. U.P. Govt. [AIR 1947
All 390 : 1947 All LJ 79] a Division Bench of
the Allahabad High Court opined as follows:
(AIR p. 390, para 3)
"3. I take up first the question of
limitation. The argument on behalf of the
appellant is that there was an automatic
abatement of the proceedings on the death
of the defendant on 4-6-1939 and, as the
application for execution was made more
than three years from that date, it is
time-barred. No doubt as the law is, there
was an automatic abatement on 4-6-1939,
but where there has been an order of the
court declaring an appeal to have abated,
the period of limitation under Article
182, Limitation Act should be reckoned
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from that date."
22. The question came up for consideration in a
different context before a three-Judge Bench of
this Court in Shyam Sundar Sarma v. Pannalal
Jaiswal [(2005) 1 SCC 436] wherein P.K.
Balasubramanyan, J. speaking for the Bench
opined that although an appeal was found to be
barred by limitation for the purpose of
reckoning the period of limitation, the date on
which the appeal was dismissed by the Court,
the same being barred, shall be the relevant
date stating: (SCC p. 440, paras 9-9.1)
"9. The specific question involved came to
be considered by this Court in Mela Ram
and Sons v. CIT [AIR 1956 SC 367] . This
Court held that an appeal presented out of
time is an appeal and an order dismissing
it as time-barred is one passed in an
appeal. This Court referred to and
followed the view taken by the Privy
Council and by this Court in the two
respective decisions abovereferred to.
This Court quoted with approval the
observations of Chagla, C.J. in K.K.
Porbunderwalla v. CIT [(1952) 21 ITR 63
(Bom)] (ITR p. 66) to the following
effect: (SCR p. 176)
'[A] lthough the Appellate Assistant
Commissioner did not hear the appeal on
merits and held that the appeal was barred
by limitation his order was under Section
31 and the effect of that order was to
confirm the assessment which had been made
by the Income Tax Officer.'
9.1. In Sheodan Singh v. Daryao Kunwar
[AIR 1966 SC 1332] rendered by four
learned Judges of this Court, one of the
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questions that arose was whether the
dismissal of an appeal from a decree on
the ground that the appeal was barred by
limitation was a decision in the appeal.
This Court held: (SCR pp. 308 H-309 B)
'We are therefore of opinion that where a
decision is given on the merits by the
trial court and the matter is taken in
appeal and the appeal is dismissed on some
preliminary ground, like limitation or
default in printing, it must be held that
such dismissal when it confirms the
decision of the trial court on the merits
itself amounts to the appeal being heard
and finally decided on the merits whatever
may be the ground for dismissal of the
appeal.' "
25. In Mithailal Dalsangar Singh v. Annabai
Devram Kini [(2003) 10 SCC 691 : AIR 2003 SC
4244] this Court observed the effect of
abatement in the following terms: (SCC p. 696,
para 8)
"8. Inasmuch as the abatement results in
denial of hearing on the merits of the
case, the provision of abatement has to be
construed strictly. On the other hand, the
prayer for setting aside an abatement and
the dismissal consequent upon an
abatement, have to be considered
liberally. A simple prayer for bringing
the legal representatives on record
without specifically praying for setting
aside of an abatement may in substance be
construed as a prayer for setting aside
the abatement."
26. We need to read the liberal trend on
setting aside the abatement and the issue of
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finality of decision on abatement together. It
is to be noted that considerable leeway has
been accorded to proceedings to set aside
abatement. Thus it follows that only because
abatement leads to serious consequences, the
emphasis on ample opportunity to set aside
abatement has been laid down.
28. The provisions of statute of limitation
cannot be construed in a pedantic manner. This
is now a well-known principle of law. Had the
appeal been dismissed on merit, indisputably
the period of limitation would have started
from the date of dismissal of the second
appeal. The respondents themselves preferred an
appeal. The appeal was a continuation of a
suit. The appellants herein could not, thus,
have been held to be aware of the fact that
during pendency thereon Bansi would die or the
appeal shall abate. Let us consider a
hypothetical situation. An appeal abates after
three years of the judgment and decree passed
by the first appellate court and in that
situation the appellant would have no chance to
reap the benefit thereof, if the submission of
the learned counsel appearing on behalf of the
respondent is accepted. The law, in our
opinion, cannot be construed in a manner which
would defeat the ends of justice.
29. In fine, when an appeal/suit abates, the
same may not amount to adjudication of a decree
on merit but indisputably it would attain
finality. Decision on merits is not the only
test to determine the finality of decision.
Finality gained due to abatement is an
illustration of the aforementioned variety. The
declaratory decree, in that view of the matter
passed in favour of the respondents had
attained finality only when the order dated 14-
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10-1977 was passed.
34. For the reasons aforementioned, we are of
the opinion that the High Court was not correct
in holding that the suit of the appellants was
barred by limitation. The appeal is allowed.
There will, however, be no order as to costs."
(emphasis supplied)
19. What is discernible from reading of the aforesaid decision and the
ratio laid down by the Honorable Apex Court therein, that the
provisions of the Limitation Act should be construed in a broad
manner, and different provisions of the Limitation Act may
requires different constructions. The Honorable Apex Court,
having noticed different decisions passed by different High Courts
as well as full bench of the Honorable Apex Court, wherein, what
is held that disposing of an appeal having been abated, it would
consider that finally the proceeding gets concluded, thereby, such
order gives a new starting point for a period of limitation
prescribed under the Act, 1963 for anything to initiate in its
furtherance. It is clearly observed that the provisions of the Act,
1963 cannot be construed in a pedantic manner.
20. It is so observed and gave an example in very same decision, that
had the appeal been dismissed on merits, undisputedly, a period of
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limitation would have been started from the date of dismissal of the
second appeal. Even, before Hon'ble Apex Court, the respondents
themselves preferred an appeal, as like in the present case,
petitioners/judgement debtors have preferred the second appeal.
The appeal was continuation of the suit. It is observed in Para-28
of said decision that: "Let us consider the hypothetical
situation, An appeal abates after three years of the
judgment and decree passed by the first appellate
court and in that situation the appellant would have
no chance to reap the benefit thereof, if the
submission of the learned counsel appearing on
behalf of the respondent is accepted. The law, in
our opinion, cannot be construed in a manner which
would defeat the ends of justice."
(emphasis supplied)
21. Thus, in view of the aforesaid peculiar facts and circumstances of
the present case and taking note of the aforesaid decision of the
Honorable Supreme Court in the case of Bhag Mal (supra) and its
ratio, I am not at all convinced with the arguments so canvassed by
learned Advocate Mr. Khanchandani that the execution application
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is time-barred, having filed after a period of 12 years from the date
of passing of the decree by the Appellate Court on 22nd January,
1993.
22. According to my view, when this Court vide its order dated 26th
August, 2011, declared that the second appeal filed by the
judgement debtors stand abated, thereby, disposed of such appeal,
on such date, it would attained finality to the decree so passed by
the Appellate Court. If that be the position, surely decree would be
enforceable in law, can be executed within 12 years from the date
of passing of the order by this Court on 26 th August, 2011. Thus,
the execution application so filed by the predecessor in interest of
the respondent No. 1 in year 2019, cannot be stated/considered as
time-barred.
23. So far as, the decision so cited by learned Advocate Mr.
Khanchandani in support of his submissions, in the case of
Ratansingh (supra), it was a case before the Honorable Apex
Court, wherein, decree passed by the first Appellate Court on 1st
August, 1973, was carried before the High Court by way of second
appeal, like the present case, but it was dismissed, having not
condoned the delay on 31st March, 1976 and the execution petition
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was filed only on 24th March, 1988. The Honorable Division
Bench of the Apex Court in Ratansingh (supra), in the peculiar
facts and circumstances, would held that mere dismissal of appeal
by the High Court, having not condoned the delay would not
amounts to passing of any decree by the High Court. Thus, its
enforceability would be considered from the date of passing of the
decree by the Appellate Court i.e. 1st August, 1973, and counting
such date, execution was considered to be time-barred, having been
filed on 24th March, 1988, i.e. after the period of 12 years.
24. At first blush, after going through the decision of the Honorable
Division Bench of the Apex Court passed in the case of
Ratansingh (supra), one may carried away with the fact that once
appeal is dismissed not on merits but on any technical reason i.e.
non-condonation of delay, it would not be considered as a date
from which any decree can be executed. At the same time, in view
of later decisions of Honourable Apex Court that too of its Full
Bench having relied upon its previous higher strengths' benches,
taking note in Bhag Mal (supra), law stands otherwise.
25. The Full Bench of the Honorable Apex Court, later in point of
time, in the case of Shyam Sunder Sarma (supra) reported in
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(2005) 1 SCC 436, having so notice in Bhag Mal (supra) (Para-
22), appears to have taken a contrary view than taken in a case of
Ratansingh (supra), inasmuch as, it observed and held thus:
"9. The specific question involved came to be
considered by this Court in Mela Ram and Sons
v. CIT [1956 SCR 166 : AIR 1956 SC 367] . This
Court held that an appeal presented out of time
is an appeal and an order dismissing it as
time-barred is one passed in an appeal. This
Court referred to and followed the view taken
by the Privy Council and by this Court in the
two respective decisions above-referred to.
This Court quoted with approval the
observations of Chagla, C.J. in K.K.
Porbunderwalla v. CIT [(1952) 21 ITR 63 (Bom)]
(ITR p. 66) to the following effect: (SCR p.
176)
"[A]lthough the Appellate Assistant Commissioner did not hear the
appeal on merits and held that the appeal was barred by limitation his
order was under Section 31 and the effect of that order was to confirm
the assessment which had been made by the Income Tax Officer."
9.1. In Sheodan Singh v. Daryao Kunwar [AIR
1966 SC 1332 : (1966) 3 SCR 300] rendered by
four learned Judges of this Court, one of the
questions that arose was whether the dismissal
of an appeal from a decree on the ground that
the appeal was barred by limitation was a
decision in the appeal. This Court held: (SCR
pp. 308 H-309 B)
"We are therefore of opinion that where a decision is given on the
merits by the trial court and the matter is taken in appeal and the
appeal is dismissed on some preliminary ground, like limitation
or default in printing, it must be held that such dismissal when it
confirms the decision of the trial court on the merits itself
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amounts to the appeal being heard and finally decided on the
merits whatever may be the ground for dismissal of the appeal."
(emphasis supplied)
25.1. In the case of Shyam Sunder Sarma (supra), as referred to
hereinabove in Para-9.1, the decision of four Honorable Judges of
Hon'ble Apex Court in the case of Sheodan Singh V/s. Daryao
Kunwar reported in AIR 1966 SC 1332, was considered, which
clearly held that when an appeal is dismissed on some preliminary
ground like limitation, this itself amongst to appeal being heard
and finally decided on merit, whatever may be the ground for the
dismissal of the appeal. It appears that decision in the case of
Sheodan Singh (supra) not brought to notice of the division bench
of Honourable Apex Court in a case of Ratansingh (supra).
26. Having considered the aforesaid Full Bench decisions of the
Honorable Apex Court in the case of Shyam Sunder Sarma
(supra), Sheodan Singh (supra) and so also taking into account the
ratio of Bhag Mal (supra), I am of the opinion that the judgment so
relied upon by learned Advocate Mr. Khanchandani, Ratansingh
(supra), would not be applicable to the facts of the present case.
27. Having so considered the ratio laid down by the Honorable Apex
Court in the aforementioned decisions and then after, analyzing the
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provisions of law of limitation i.e. Article 136 of the Act, 1963 vis-
à-vis aforesaid facts and circumstances of the case, and so also
observed herein above, it would lead to only one conclusion that
the execution proceeding instituted by the predecessor in interest of
the respondent No. 1 can be stated to be within period of
limitation. It can be so held that decree though passed by Appellate
Court on 22.01.1993, but when second appeal was disposed of as
abated only on 26.08.2011, in view of aforesaid, the decree in
question thus, attained finality, then enforceable one when filed
execution in year 2019 i.e. filed within 12 years from 26.08.2011.
28. Even otherwise, as referred above, an inconsistent plea taken by
petitioners-judgement debtors while filing their respective
objections as on one hand, alleged that Execution is premature as
second appeal is pending and on other hand, alleged that its time
barred. The petitioners cannot allow to approbate and reprobate.
When due to fault on the part of petitioners, second appeal
dismissed for non-prosecution or stands abated as the case may be,
they cannot take and should not allow to get undue advantage of
their own default, otherwise it defeat the ends of justice.
29. In view of the aforesaid, no jurisdictional error, committed by the
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Executing Court when it turned down the objections raised by the
petitioners herein being judgement debtors, whereby passed order
impugned in the writ application.
30. Before parting, it would also be gainsaid that this Court cannot
interfere with each and every order passed by the Civil Court as the
drop of a hat. The power available with this Court while exercising
it under Article 227 of the Constitution of India, is not like of
appellate jurisdiction, thereby, it should be sparingly exercised.
According to me, when this Court could not find any jurisdictional
error committed by the Trial Court/Executing Court, it should not
interfere with the order passed by such court. [ See - Sameer
Suresh Gupta TR PA Holder vs. Rahul Kumar Agarwal, reported
in 2013 (9) SCC 374 (Para 6 and 7) and Garment Craft v.
Prakash Chand Goel, reported in (2022) 4 SCC 181 (Para 15 and
16) ]
CONCLUSION
31. In light of the aforesaid observations, discussions and reasons, I do
not find any merit in the matter, inasmuch as having so observed,
the execution application filed by the predecessor in interest of the
respondent No.1 herein in year 2019 is held to be filed within the
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period of the Limitation Act, 1963. The decree passed in year 1993
sought to be executed would be enforceable at law by way of such
execution application.
32. In view of the foregoing conclusion, the present writ application
having found bereft of any merit, required to be rejected, which is
hereby rejected. The impugned order dated 04/08/2025 passed by
the Ld. Additional Civil Judge, Palitana in Execution Application
No.15 of 2019 is hereby confirmed. No order as to costs.
(MAULIK J. SHELAT, J)
Nilesh
