Harish Tandon, J. - (1.) Initially the point which appears to be somewhat settled become debatable and assumes anxious consideration when a plea is taken by the petitioner that the execution proceeding is barred by limitation having filed after the expiration of 12 years from the date of the decree passed by the Court of first instance.
(2.) To elaborate the aforesaid point, it is submitted on behalf of the petitioner that though the suit was decreed on merit but there was no order of stay of the execution proceeding passed in the appeal filed against the said decree and therefore in absence of any fetter to put the decree into execution, the execution proceeding filed after the dismissal of an appeal on technical ground does not postpone the date of limitation provided under Article 136 of the Limitation Act. To have more clarity on the above plea, the undisputed salient facts are adumbrated herein below:- the plaintiff / opposite party filed Title Suit No. 667 of 1986 in the Court of learned Munsif, 4th Court, Sealdah against the father of the present petitioner which culminated into a decree for eviction on 31st March, 1996. The petitioner carried the said judgment and decree to the Appellate Court which gave rise to registration of Title Appeal No. 110 of 1996 in the Court of District Judge at Barasat. It is important to record that the petitioner did not file any application for stay of the execution proceeding nor any application restraining the plaintiff / opposite parties from executing the decree were filed in the said appeal. However, the appeal continued to remain pending until 28th August, 2002 when it was dismissed for default for non compliance of the Court's order. The reason for such dismissal was on an earlier date, no steps were taken by the petitioner and the Appellate Court issues show case as to why the appeal be not dismissed for default. Since no reply to show cause was filed on such date, the Court dismissed the appeal.
(3.) Essentially the appeal is dismissed for default and an execution proceeding was filed in the year 2012 i.e. within 10 years from the date of the order of dismissal of the said appeal. A plea is taken in an application under Section 151 of the Code of Civil Procedure that the said execution proceeding is palpably barred by limitation under the provisions of Article 136 of the Limitation Act.;