ALOK SHARMA,J. - (1.) Under challenge is the order dated 28.1.2011 whereby the Executing Court has dismissed the objections filed by the petitioner-judgment debtor (hereafter 'JD') apparently under section 47 CPC following a notice on an application under Order 21, Rule 22 CPC at the instance of the respondent-decree-holder (hereafter 'DH') for the execution of the final judgment and decree dated 2.7.1987 passed by the Additional District Judge No.2, Ajmer in the DH's eviction suit.
(2.) Ms. Anita Agrawal, counsel for the JD submitted that the decree of eviction by the trial court having been passed on 7.1987, the execution application filed on 21.11.2008, was beyond the limitation of 12 years as provided for under Article 136 in the Schedule to the Limitation Act, 1963 (hereafter 'the Act of 1963') and hence was not maintainable. She further submitted that the execution application sought possession of properties differently described than the property set out in the eviction decree passed on 7.1987. Ms. Anita Agrawal further submitted that even otherwise the execution application seeking recovery of Rs. 3,500/- per month as mesne profits was not maintainable as the decree of the Trial Court passed on 7.1987 did not so provide. It was submitted that in any event the decree dated 2-7- 1987 passed by the trial court having merged with the judgment dated 18.9.2007 passed by the First Appellate Court and yet no decree of the appellate court ever having been drawn, the execution proceedings vis-a-vis decree dated 7.1987 passed by the Trial Court was in fact not at all maintainable. The JD's objection application under section 47 CPC ought to have been hence allowed, on this count, submitted Ms. Anita Agrawal, but was dismissed on the Executing court acting perversely and without jurisdiction on the said execution application. Hence this petition under Article 227 of the Constitution of India against the order dated 28-1-2011 passed by the Executing Court be allowed and the DH's execution application be dismissed.
(3.) Per Contra, Mr.Siddharth Bafna counsel for the DH submitted that the argument of limitation against the maintainability of the execution application is raised for the first time in this Court without any factual foundation in the JD's desperation to avoid eviction. It was never raised by the JD before the Executing Court. Mr.Siddharth Bafna submitted that the effort of the JD is to create confusion on factually vacuous arguments. The defence of limitation against the execution of the decree dated 2-7-1987 is just an attempt to continue enjoying the possession of the premises, tenancy of which stands terminated. And the JD has successfully been able to do for the last about 21 years. This kind of litigant's conduct, resultant delays in adjudication and fruition of legal rights gives out a message of easy misuse of the Court's process and that the Court are not so much a forum for vindication of legal rights, but instruments for mischievous litigant/s to oppress and harass the innocent opposite party. Mr.Siddharth Bafna, submitted that while setting up the ground of limitation allegedly barring the execution application, the JD has also suppressed from this court two important aspects; first, that the judgment and decree dated 2.7.1987 was stayed on 8.9.1987 in the Civil First Appeal laid by him before this court and second, that the said stay order was only vacated on 18.9.2007. Mr.Siddharth Bafna submitted that during this period of stay by the appellate court from 8-9-1987 till 18-9-2007 the decree of the trial court passed on 2.7.1987 was not enforceable. The period of stay of the decree dated 2-7-1987 has to be excluded from the computation of limitation for its execution as is apparent from a bare reading of Article 136 in the Schedule appended to the Act of 196 Mr. Siddharth Bafna submitted that following the vacation of the stay on the execution of the decree vide the appellate court's order dated 18-9-2007, the execution application was filed on 21.11.2008. No issue of limitation can thus arise in the facts of the case, Mr.Siddharth Bapna submitted.;