@JUDGMENTTAG-ORDER
Pratap Krishna Lohra, J.@mdashPetitioner-decree-holder has filed this revision petition under Section 115 of the Code of Civil Procedure, 1908
(for short, ''CPC'') for assailing the order dated 1st of August, 2014 passed by learned Addl. District Judge, Suratgarh in Civil Execution Case
No. 13/2012, whereby his application under Section 5, Limitation Act and Section 151 CPC has been rejected.
2. The bare necessary facts of petitioner''s case, relevant for deciding the controversy, are that original suit No. 15 of 1995 (120/90) was filed by
him for specific performance of contract on 28.04.1990 against one Pritam Singh, the original defendant, who died during the pendency of the suit,
therefore, his Legal Representatives were taken on record. The LRs of Pritam Singh filed compromise in the Court below and in light thereof the
suit was decreed on 17.05.1997 but the LRs of original defendant did not honour the decree despite the fact that the disputed land was mutated in
their names including son of original defendant Foja Singh on 05.04.2010, therefore, he had to file Execution Proceedings against Foja Singh as
well as other Legal Representatives of original defendant on 11.06.2010 alongwith application under Section 5 of the Limitation Act before the
learned Court below. The learned executing Court dismissed the said application as well as execution petition. It is averred by the petitioner in
revision petition that after receiving copy of the Land Transfer Register he came to know about the death of Foja Singh s/o Pritam Singh, as such
has now impleaded the legal heirs of Foja Singh also in this revision petition.
3. The defendant/judgment-debtors appeared in the execution proceeding and filed reply to the application under Section 5 Limitation Act read
with Section 151 CPC praying for dismissal of the execution proceeding on the ground that it is barred by limitation since it has been filed after the
prescribed period of 12 years. It is also pleaded that period of limitation has reckoned from the expiry of one month from passing of the decree,
therefore, laying execution after 131/2 years is per se barred by limitation which is not condonable.
4. The learned Court below, after considering the rival submissions, vide the order impugned, rejected petitioner''s prayer for condonation of delay
and consequently dismissed the execution petition.
5. Learned counsel for the petitioner, Mr. Kailash Khatri, has vehemently argued that while passing the impugned order, the learned Court below
has not examined the matter in entirety and therefore the impugned order is not sustainable in the eye of law. Learned counsel Mr. Khatri submits
that the land in dispute was mutated in the name of LRs of original defendant only on 05.04.2010 and thereafter the petitioner requested them to
execute sale-deed as per compromise decree but they did not respond to his request and made an attempt to sell the disputed land to some other
persons, which prompted him to file the execution proceeding before the Court below immediately on 11.06.2010, but this aspect of the matter
was not considered by the learned Court below which has made the order impugned vulnerable. Learned counsel argues that in the suit for specific
performance of contract, the matter was set at rest by the compromise decree against which the judgment debtors did not prefer any appeal and
hence the decree became executable, was a very vital issue, which has not been appreciated by the learned Court below. Learned counsel would
contend that the executing Court is bound to execute the decree in letter and spirit. In support of his contentions, Mr. Khatri has placed reliance on
following judgments:
1. Deep Chand and Ors. Vs. Mohan Lal [III (2000) SLT 534]
2. Akshoy Kumari Vs. Nalini Ranjan [AIR (37) 1950 Calcutta 493]
3. Mst. Parmeshri and Others Vs. Mst. Atti, AIR 1958 P&H 79
6. Heard learned counsel for the petitioner and scanned the material available on record.
7. The compromise decree, as passed by the learned Court below, was a conditional decree, under which the purchaser/decree-holder was
required to get sale-deed executed in respect of 8 bighas of land and the entire transaction was to be concluded within one month from the date of
decree. Despite the specific period of one month specified in the decree, the petitioner did not get the sale-deed executed within the period of one
month. As such, the decree had become voidable and could not be enforced by way of Execution Proceeding in view of the provisions of Section
55 of the Indian Contract Act. Further, since time was the essence of the compromise decree, it is deemed to be void due to non-compliance
within the stipulated period and therefore decree cannot be enforced under law after a lapse of period of more than 13 years in view of the
provisions of Section 28 of the Specific Relief Act.
8. The stand taken by the petitioner-plaintiff decree-holder that the respondent-judgment-debtors, who had filed the compromise, refused to
cooperate with the plaintiff-decree-holder for execution of sale-deed and had intentionally delayed the matter on one pretext or the other, and
consequently the decree-holder was constrained to file the execution petition, is not tenable in view of the fact that the suit filed by the petitioner-
plaintiff, against original defendant, the predecessor in title of respondent-defendants, for specific performance of the contract, was decreed in
terms of the compromise arrived at between the parties and the learned Court below as per the terms of compromise, passed the decree. The
respondent-defendants had agreed to execute the sale-deed in respect of 8 bigha of land and get the same registered. The entire transaction was to
be completed within one month from the date of decree. Apparently, time was stipulated as the essence of contract as per the conditions of the
agreement, however, the compromise decree was not executed within the stipulated period of one month and had continued to remain unexecuted
till the year 2010, i.e., for more than thirteen years. The plaintiff decree-holder did not obtain extension of the period from the Court below, which
had passed the decree, nor did he file the execution proceeding promptly after expiry of the one month stipulated period. Instead, he chose to
initiate the execution proceeding after more than thirteen years from the date of decree. Therefore, the execution proceeding is clearly barred by
limitation inasmuch as time for execution of the decree was stipulated in the terms of compromise itself, which had formed part of the decree, and
the decree-holder having not made any effort to get the decree executed within the period stipulated, the attempt to get the decree executed after a
lapse of more than thirteen years cannot be countenanced.
9. The decree was essentially for specific performance of contract and period of one month from the date of decree was stipulated for its
performance. If for any reason, the performance was not made within the period stipulated, then the decree-holder ought to have sought for
extension of period from the Court, which had passed the decree, and get sale-deed executed. In the present case, the facts are that though the
decree as per the terms of agreement, was executable within a period of one month from the date of decree, but the same was not executed for
more than thirteen years from the date of decree. The decree-holder did not choose to get the period extended by the Court, and after more than
thirteen years filed the execution petition seeking execution of the decree. The judgment-debtor-respondents though did not file any separate
petition for rescinding the contract but had objected to the execution on the ground of limitation expressing thereby that the agreement/compromise
for specific performance had become voidable at the option of the judgment-debtor and they are therefore not liable to perform their part of the
contract.
10. The legal precedents, on which the learned counsel for the appellant has placed reliance, are factually distinguishable. The judgment in Deep
Chand''s case (supra) is clearly distinguishable for the reason that that in that case the execution application seeking possession of land was filed
within the limitation period of 12 years whereas in the instant case the execution proceeding was initiated after the expiry of limitation period
delayed by one and half years. Therefore, in the backdrop of the facts and circumstances of the instant case, the said case relied upon by the
petitioner cannot render any assistance to the petitioner. The other two cases, relied on by the petitioner for taking a liberal view and not a
technical construction, are also of no help to the petitioner in view of the decision of Hon''ble Apex Court in V.S. Palanichamy Chettiar Firm Vs.
C. Alagappan and Another, AIR 1999 SC 918 : (1999) 1 CTC 409 : (1999) 1 JT 216 : (1999) 1 SCALE 219 : (1999) 4 SCC 702 : (1999) 1
SCR 349 : (1999) 1 UJ 486 : (1999) AIRSCW 481 : (1999) 1 Supreme 389 in which extension of time was prayed for by the decree-holder
after five years of the date of decree and the Hon''ble Court considering the facts of that case, held that though the executing Court, being the same
Court, which had passed the decree, had the discretion to extend the time, but considering the delay of more than five years, observed that equity
demands that discretion be not exercised in favour of the decree-holder and no extension of time be granted to comply with the decree.
11. It is trite that law of limitation is to be construed strictly in execution proceedings and provisions under Section 5 and 12(2) of the Limitation
Act are not applicable vis-a-vis execution proceedings. Reliance in this behalf can be profitably made to a decision of Hon''ble Apex Court in
West Bengal Essential Commodities Supply Corporation Vs. Swadesh Agro Farming and Storage Pvt. Ltd. and Another, AIR 1999 SC 3421 :
(1999) 6 JT 599 : (1999) 123 PLR 618 : (1999) 5 SCALE 504 : (1999) 8 SCC 315 : (1999) 2 SCR 399 Supp : (2000) 1 UJ 107 : (1999)
AIRSCW 3401 : (1999) 7 Supreme 629 , wherein the Court held:
19. Under the scheme of the Limitation Act, execution applications, like plaints have to be presented in the Court within the time prescribed by the
Limitation Act. A decree-holder does not have the benefit of exclusion of the time taken for obtaining the certified copy of the decree like the
appellant who prefers an appeal, much less can he claim to deduct time taken by the Court in drawing up and signing the decree. In this view of the
matter, the High Courts of Patna and Calcutta in Sri Chandra Mottli Deva v. Kumar Binoya Nand Singh and Ors. and Sunderlal and Sons v.
Yagendra Nath Singh and Anr. Have correctly laid down the law; the opinion to the contra expressed by the High Court of Calcutta in Ram
Krishna Tarafdar v. Nemai Krishna Tarafdar is wrong. Section 5 of the Limitation Act has no application; Section 12(2) of the Limitation Act is
also inapplicable to an execution petition. If the time is reckoned not from the date of the decree but from the date when it is prepared, it would
amount to doing violence to the provisions of the Limitation Act as well as of Order 20 and Order 21 Rule 11 C.P.C. which is clearly
impermissible.
12. Therefore, viewed from any angle, I am not inclined to interfere with the impugned order in exercise of revisional jurisdiction of this Court.
Moreover, on a close scrutiny, in my opinion, impugned order has not occasioned failure of justice requiring interference under the revisional
jurisdiction.
13. Resultantly, the instant revision petition lacks in merit and the same is accordingly dismissed summarily.
