S.N. Sahay, J. - (1.) This short question which arises for determination in this case is whether the application for execution of the final decree passed in a suit for partition is barred by time.
(2.) The material facts giving rise to this writ petition are not disputed. The suit for partition was filed by Sri Shyam Narain Sinha, Opposite Party No. 3, and in that suit the preliminary decree was passed on 17.5.66 and the final decree was passed, on 13.4.68. Dr. Bipin Behari Sinha, predecessor-in-interest of the petitioners, applied under Order IX, Rule 13, C.P.C. for setting aside the aforesaid final decree. The application was rejected on 23.12.69 and the appeal filed against the order of rejection was also dismissed on 24.5.69. In the meantime, the Opposite Party No. 3 deposited the requisite stamp papers in Court on 16.1.70 and the final decree was drawn on 31.1.70. The Opposite Party No. 3 made' an application dated 11.7.80 for execution of the final decree. Dr. Bipin Behari Sinha filed an objection under Section 47, C.P.C. that the execution application was barred by time. The objection was, however overruled by the learned Civil Judge, Gonda who, by his order dated 8.12.80 rejected the application under Section 47, C.P.C. Dr. Sinha filed revision against the said order and the revision was also dismissed by the learned V Additional District Judge, Gonda on 26.2.85. Copies of the orders passed by the learned Civil Judge and the learned Additional District Judge have been filed as Annexures Nos. 7 and 10 respectively to the writ petition.
(3.) Sri H.N. Tilhari, learned counsel for the petitioners, has urged that both the courts below have erred in taking the view that the execution application is not barred by time. He has submitted that the final decree was passed on 13.4.68 and the decree could not be drawn until 31.1.70 because of the fact that the Opposite Party No. 3 failed to deposit the requisite stamp papers until 16.1.70. It was accordingly contended that time will begin to run from 13.4.68 and the Opposite Party No. 3 could not stop the running of time by his own inaction or negligence and in that case the application for execution which was filed on 11.6.80 would be barred by time. In support of this contention the learned counsel has placed reliance on Yeshwant Deorao v. Walchand Ramchand, AIR 1951 S.C. 16 , Lala Bal Mukand v. Lajwanti and others, AIR 1975 SC 1089 and Udayan Chinubhai v. R.C. Bali, AIR 1977 S.C. 2319 . On the other hand, Sri N.N. Jaiswal, learned counsel for the respondents has submitted that since the decree was not drawn till 31.1.70 there was no decree which was enforceable within the meaning of Article 136 of the Limitation Act, 1963 and so time will begin to run from that date. He has contended that the execution application is within limitation and the objection filed under Section 47, C.P.C. was rightly dismissed.;