- (1.) HEARD Sri B. P. Nautiyal, Advocate for the petitioners and Sri Jitendra and Sri Munish Bhardwaj, Advocate for the respondents.
(2.) BY the present writ petition the petitioners have prayed for a writ of certiorari quashing the order dated 28-10-2004 passed by the Civil Judge (Senior Division), Dehradun. Factual Merits of the Case: Briefly stated, a petition under section 21 (1) (a) of U. P. Act No. 13 of 1972 was filed by one Smt. Qayum Begam, the predecessor of the. peti tioners praying for the eviction of the respondent No. 2 from the premises known as first floor 43/3 Gandhi Road, KL Dehradun @ Rs. 50/- per month (sic ). The Prescribed Author ity vide order dated 29th July, 1995 passed the order of eviction. No ap peal was referred and the order dated 29th July, 1995 has become final. The petitioners have filed an applica tion for execution being Misc. Case No. 29 of 2004 on 9-9-2004 stating therein that the property having been released in their favour and, as such, the possession may be delivered un der section 23 of U. P. Act No. 13 of 1972. A perusal of the record shows that no objections were filed by the respondent No. 2 in reply to the ap plication under Section 23 of the U. P. Act No. 13 of 1972. On 28-10-2004, the Prescribed Authority/civil Judge (Senior Division) passed the order that under Article 137 of the Limita tion Act, the limitation has been pre scribed to the extent of three years and, therefore, the execution being time barred the application under section 23 is not maintainable. Ag grieved by the said order the petition ers have approached under Article 226/227 of the Constitution of India. A short counter affidavit has been filed on behalf of the respondent No. 2 where the respondent No. 2 has referred paragraph No. 3 in which it has been stated that the execution application is not maintainable in order to execute the release order and is barred by the provisions of Section 21 (1) (a) of U. P. Act No. 13 of 1972. Further in paragraph No. 5 it has been stated that the claim of the petition ers for the release of the accommodation is not maintainable in as much as it was for the personal requirement of Smt. Qayum Begum and after her death the personal requirement of the petitioners are not maintainable and, as such, there being no personal need the application under section 23 is not maintainable. Further in para graph No. 7 of the counter affidavit it has been stated that the order un der section 21 (1) (a) of the Act be ing not a decree, no execution appli cation is maintainable under-Article 136 of the Limitation Act. From the perusal of the record it is evident that the application under section 23 of the Act was filed by the petitioners, the same was not controverted by the respondent No. 2. Neither any objec tions in the form of reply nor any other objections in the form of the executability of the order under sec tion 21 (1) (a) of the Act was filed before the Prescribed authority. How ever, the petitioners have filed the present writ petition challenging the order passed by the Prescribed Au thority dated 28- 10-2004 on the fol lowing points : (1) Whether the Prescribed Author ity has wrongly applied Article 137 of the Limitation Act whereas the provisions of Arti cle 136 of the Limitation Act is applicable in the present case. (2) Whether the execution of the order under Section 21 (1) (a) of the Act No. 13 of 1972, no limitation has been prescribed. (3) Whether the order under sec tion 21 of the Act having reached the finality, the Pre scribed Authority has any juris diction under section 23 of the U. P. Act No. 13 of 1972 to go behind the order passed under section 21 (1 ) (a) of U. P. Act No. 13 of 1972. (4) Whether the personal need of the landlord is available to the heirs and further applicability of Section 21 (7) of the Act to the facts of the present case. POINT NOS. 1and2 Applicability of the Provi sions of the Limitation Act for the execution of the order
(3.) LEARNED counsel for the peti tioners has submitted that Article 136 of the Limitation Act applies for the execution of decree within a period of 12 years. The same is quoted below : "136. When the decree or order becomes enforceable or where the decree or any subsequent order di rects any payment of money or the delivery of any property to be made at a certain date or at recur ring periods, when default in mak ing the payment or delivery in re spect of which execution is sought, takes place: Provided that an application for the enforcement or execution of a decree granting a perpetual injunc tion shall not be subject to any pe riod of limitation. " However, Articles 136 and 137 is quoted below : Table 136. For the execution of any decree (other than a decree granting a mandatory injunction) or order of any civil court. Twelve years (When) the decree or order becomes enforceable or where the decree or any subsequent order directs any payment of money or 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 in junction shall not be subject to any period of limitation. Table PART II-QTHER APPLICATIONs 137. Any other application for which no period of limita tion is provided else where in this division. Three years When the right to apply accrues.;