@JUDGMENTTAG-ORDER
J.G. Chitre, J.
This petition is finally decided on request of both the learned counsel for rival litigants.
Shri Pande, appearing for the petitioner made a reference to Article 136 of Limitation Act, 1963 (hereinafter referred to as Act for convenience), and submitted that the decree becomes enforceable from the date on which it has been passed and, therefore, in the present matter it was necessary for the lower court to exclude the property which has been inherited by Nemichand''-from his father Bherulal afterwards. Shri Pande placed reliance on the decision of Patna High Court in the matter of Ram Gobind Rai v. Shahabad District Board through the Special Officer, Arrah, reported in AIR 1976 Patna 118. In view of this, Shri Pande submitted that the impugned order is illegal and that needs to be set aside.
Shri A. K. Shrivastava, submitted that the impugned order is correct, proper and legal because, the proceedings is continuing one and he had right to include the property including house situated in village Takhla, Tah. Susner, Dist. Shajapur owned by deceased Bherulal s/o Kishan.
Section 48 of Code of Civil Procedure, 1976 has been repealed by Article 136 of the Limitation Act. Therefore, in respect of execution of decree on this aspect importance will have to be given to Article 136 of Limitation Act which provides that in the execution of any decree (other than a decree granting a mandatory injunction) or order of any Civil Court, the period of limitation shall be 12 years from the date from which the decree or order becomes enforceable or from the date when the decree or any subsequent order directs for payments of money or the delivery of any property to be made at certain date of recurring periods, when default in making any payment or delivery in respect of which execution is sought, takes place.
In the matter of Ram Gobind v. Shahabad District Board (supra) Patna High Court has held, following the judgment of Supreme Court in the matter of
"Now the properties cannot be added in execution of the decree after period of 12 years from the date of decree."
In view of the Article 136 of the Act, which has repealed Section 48 of Civil Procedure Code, I agree with the view taken by Single Bench of Patna High Court in the matter of Ram Gobind Rai (supra). Thus, the property, which has been inherited or acquired as a legacy by D.H. after period of 12 years from the date when decree in execution becomes enforceable, cannot be included in the decree which is subject matter of execution. Such property which has been so acquired after said period of 12 years, cannot be attached, sold in execution of such decree; of course the date of acquisition of such property by D. H. will have to be ascertained by appropriate legal enquiry.
The reasons given by the Executing Court in coming to the conclusion that inclusion of the property mentioned above is in the nature of irregularity in continuing execution proceedings, is in my view not proper, correct and illegal.
The said order needs to be set aside by allowing this revision petition. This revision petition is allowed with costs. The said order is hereby set aside. The property mentioned above shall be excluded from the execution proceedings which is proceeding before the Executing Court, whose order has been assailed by this revision petition.
