Madhya Pradesh High Court
Indramani (Deceased) Through Lrs ... vs Chandrika Prasad on 5 March, 2025
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
1
CR-160-15
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
CIVIL REVISION No. 160 of 2015
INDRAMANI (DECEASED) THROUGH LRS RUDRAMANI SHARMA AND
OTHERS
Versus
CHANDRIKA PRASAD
Appearance:
Shri Swatantra Pandey - Advocate for the applicants.
Shri Pushpraj Singh Gaharwar - Advocate for the respondent.
Reserved on :: 24.02.2025
Pronounced on :: 05.03.2025
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ORDER
This civil revision has been preferred by the applicants/decree holders
challenging the order dated 13.08.2014 passed by Addl. Civil Judge to the
Court of 1st Civil Judge Class-II, Rewa in execution case no.132-A/93/11
whereby allowing the judgment debtor/respondent's application/objection
dtd.19.10.2012, the Executing Court has dismissed the execution application
as barred by limitation.
2. In short, the facts are that, upon filing civil suit no.132A/93 by the
applicants/decree holders for redemption of mortgage of the land in question
and due to non-appearance of the defendants 1-2 (including State of M.P.),
the suit was decreed on 25.10.1996 to the effect that upon making payment
of Rs.500/- by the plaintiffs, the defendant 1 shall handover possession of
the land in question.
3. Undisputedly, application under Order IX Rule 13 CPC was filed by
respondent/judgment debtor on 08.02.2000, which upon due consideration
was dismissed vide order dated 06.12.2004. Misc. Appeal filed against
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which by respondent, was dismissed on 09.12.2005 and CR no.136/2006
was dismissed on 30.09.2011 by High Court. Similarly, SLP no.13628/13
was also dismissed on 20.03.2013.
4. Admittedly, the execution application was filed by applicants/decree
holders on 20.04.2011. During pendency of execution application, the
respondent/judgment debtor against the ex-parte judgment and decree
dtd.25.10.1996 also preferred regular civil appeal in the year 2013 which
was dismissed on 12.09.2013. Second appeal no.1051/13 filed against which
by respondent, was also dismissed on 22.07.2015.
5. With the aforesaid narration of facts, the respondent/judgment debtor
filed an application/objection dtd.19.10.2012 to the effect that the execution
application filed by the applicants/decree holders on 20.04.2011 is clearly
beyond limitation of 12 years prescribed under Article 136 of the Limitation
Act, 1963.
6. The application/objection was opposed orally by the decree holders,
with the prayer of dismissal of the same.
7. After hearing rival submissions of learned counsel for the parties,
executing Court allowed the respondent/judgment debtor's
application/objection and dismissed the execution application holding it to
be barred by limitation vide impugned order dated 13.08.2014. Against
which, instant civil revision has been preferred.
8. Learned counsel for the applicants/decree holders criticizing the
impugned order submits that executing Court has committed illegality in
dismissing the execution application holding it to be barred by limitation.
By placing reliance on the decisions in the case of Akkayanaicker vs.
A.A.A. Kotchadainaidu and another, (2004) 12 SCC 469 and in the case of
Rajendra Singh Bhandari vs. Harpreet Singh, AIR 2008 Raj 164, he
submits that firstly the period of limitation of 12 years would commence
from the date of order when proceedings under Order IX Rule 13 CPC came
CR-160-15
to be finally decided, as such, the application was well within limitation. He
further submits that against the ex-parte judgment and decree
dtd.25.10.1996 regular civil appeal was also filed by the respondent in the
year 2013, which was dismissed on 12.09.2013 and second appeal
no.1051/2013 filed against which, was also dismissed on 22.07.2015, hence
on the basis of principle of merger, the limitation will start from the date of
passing of order dtd.22.07.2015 in second appeal no.1051/2013. Although
the applicants had already filed the execution application on 20.04.2011. In
support of his submissions, he also placed reliance on the decisions in the
case of Shanthi vs. T.D. Vishwanathan and another, (2019) 11 SCC 419;
Sheodan Singh vs. Daryao Kunwar (Smt), AIR 1966 SC 1332; and Uma
Shankar Sharma vs. The State of Bihar and another, AIR 2005 Patna 94.
9. Learned counsel for the respondent/judgment debtor supports the
impugned order passed by executing Court and prays for dismissal of the
civil revision. In support of his submissions, he placed reliance on the
decisions in the case of Surajdin Bhalbhadra Sao and others vs. Shriniwas
@ Thandaram s/o Sheshnath and others, 1998 (2) MPLJ 460; Laxmichand
Jagannath Pandey vs. Challu Raisa, AIR 1978 MP 184; and Kamal B.
Chauhan & Ors. vs. Mohammad Jamil (D) by L.Rs., AIR 2006 MP 162 and
submits that the execution application has rightly been dismissed as barred
by limitation.
10. Heard learned counsel for the parties and perused the record.
11. First of all, it is required to be considered as to whether the period
spent in filing of the application under Order IX Rule 13 CPC and its
adjudication/decision upto Hon'ble Supreme Court i.e. from 08.02.2000 to
20.03.2013, deserves to be excluded from the period of limitation of 12
years or not.
12. In none of the cases cited on behalf of the respondent in the case of
Surajdin Bhalbhadra Sao (supra), Laxmichand Jagannath Pandey (supra)
CR-160-15
or Kamal B. Chauhan (supra), the question of exclusion of period spent in
filing of the application under Order IX Rule 13 CPC and its
adjudication/decision, was not involved, but this question was involved only
in the case of Rajendra Singh Bhandari (supra), cited on behalf of the
applicants, whereby after taking into consideration almost all the previous
judgments of Hon'ble Supreme Court, it has been held that the period spent
in filing and adjudication/decision of application under Order IX Rule 13 of
CPC deserves to be excluded from the period of limitation available under
the law. Relevant extract of which is quoted as under :
"27. A reading of the above judgment of the Hon'ble Supreme Court shows that the
Hon'ble Supreme Court has clearly held that the decree became executable only after it
attained finality with the disposal of the appeal. The Hon'ble Supreme Court then went
on to hold that the period spent by the plaintiff in that case in filing the writ petition
which was not entertained on the ground of alternative remedy was also liable to be
excluded. Thus, it cannot be said that there is a strict rule of rigid consideration for the
period of limitation.
28. In the present case against the ex parte decree for money dated 5-10-1991 the
defendant had two remedies either to prefer an appeal under Section 96, CPC and get it
set aside or to file an application under Order 9, Rule 13, CPC and get it set aside. The
effect of both the remedies if it results in favour of the defendant is the same and the
decree dated 5-10-1991 would not be executable, as has been held by the Hon'ble
Supreme Court the decree becomes executable only on the appeal having been decided
on the same analogy in the facts and circumstances of the present case the decree became
executable on the application filed by the defendant being finally decided on 6-7-2001.
29. In the instant case, the decree-holder had been vigilant and soon after the decree
dated 5-10-1991 was passed, he filed the execution application dated 11-12-1991 and the
same was prosecuted till such time as this Court allowing the appeal filed by the
petitioner remanded the matter to the learned trial Court for decision of the application
under Order 9, Rule 13, CPC afresh after affording an opportunity to both the parties to
lead evidence on the same vide its judgment dated 22-4-1992. The aforesaid appeal
having been allowed, the decree-holder, therefore, proceeded to withdraw the execution
application and did not press the same on account of pendency of the proceedings under
Order 9, Rule 13, CPC as in the event of the said application having been allowed the
entire exercise in the execution would have become futile and it can also be said that the
same was in deference to the order passed by this Court. The defendant/ judgment-
debtor, on the other hand, despite the order passed by this Court in his favour on 22-4-
1992 was not at all interested in prosecuting the application filed under Order 9, Rule 13,
CPC which ultimately came to be dismissed for non-prosecution as the
defendant/judgment-debtor failed to file the necessary affidavits before the learned trial
Court in support of the application under Order 9, Rule 13, CPC for nine years after the
order dated 22-4-1992 and consequently the learned trial Court dismissed the said
application dated 10-10-1991 vide its order dated 6-7-2001 i.e. after ten years.
30. The aforesaid period in the light of the judgment of the Hon'ble Supreme Court in the
CR-160-15
case of West Coast Paper Mills Limited (AIR 2004 SC 1596) (supra) contained in para
No. 16 deserves to be excluded."
13. Upon careful consideration of the decision in the case of Rajendra
Singh Bhandari (supra) and in the interest of justice I deem fit to follow the
said decision and hold that the period spent in filing of the application under
Order IX Rule 13 CPC and its final adjudication/decision deserves to be
excluded from the period of limitation of 12 years available for filing of
execution application under Article 136 of the Limitation Act, 1963.
14. Even otherwise in the present case judgment and decree dated
25.10.1996 was merged in the final order dtd.22.07.2015 passed in second
appeal no.1051/13 filed by the respondent, so from both the angles, the
execution application is well within limitation.
15. Apparently without taking into consideration the aforesaid factual and
legal position, executing Court has passed the impugned order dismissing
the execution application holding it to be barred by limitation.
16. In view of the aforesaid discussion and in the considered opinion of
this Court, the impugned order being unsustainable, deserves to be and is
hereby set aside, with the direction to the Executing Court to restore the
execution application to its original number and to proceed with the
execution application in accordance with the law, treating it to be within
limitation.
17. Resultantly, civil revision succeeds and is hereby allowed.
18. Misc. application(s), pending if any, shall stand closed.
(DWARKA DHISH BANSAL)
JUDGE
pb
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH,
PRASHANT BAGJILEWALE
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st=Madhya Pradesh,
serialNumber=A08AE25ACEFF18C7A0F94698E1BC6A3CCF1DC9654549200EB1BC8E5DDF6349B0, cn=PRASHANT
BAGJILEWALE
Date: 2025.03.06 14:34:00 +05'30'
