AI Drafter 
TaxTMI 
TaxTMI 
2007 (11) TMI 694
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....rked as Regular Civil Suit No. 250/1965. It was dismissed on 24.12.1968. An appeal preferred there against was also dismissed. However, a second appeal filed by the plaintiff-decree holder was allowed upon setting aside the judgment and decree of the Courts' below, the operative portion whereof reads as under: For the reasons stated in the accompanying judgment, the court allows the appeal, sets aside the decrees of both the courts below dismissing the suit and instead. The Court orders that the plaintiffs suit for possession of 32 gunthas area, as shown in the copy of the map Exh. 30, from out of Survey No. 59/1 area 3 acres 12 gunthas, shall stand decreed with costs throughout. The appellant- plaintiff is also entitled to an enquiry under the provisions of the Order XX Rule 12(1) C.P.C. for mesne profit in respect of the suit land from the date of the suit till the actual delivery of possession. 4. An application for review thereof was filed by the predecessor-in- interest of the appellants herein. The said review petition was dismissed by an Order dated 12.8.1985. Appellants preferred a special leave petition there against before this Court and leave having been ....
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....d Counsel for the J.D. placed his reliance on the decision in the case of Ram Ratan Choudhary v. Upendra Chondru Das AIR1923Cal288 . But, there was to stay is that case (sic) and hence the ratio is not applicable to the facts of the present case. Hence, there is no substance in the submission that the execution is not within limitation. Hence, I hold that the execution is well within limitation as an order of stay to the order of Hon'ble High Court was operating. 8. As noticed hereinbefore, a learned Single Judge of the Bombay High Court, Nagpur Bench, Nagpur by reason of the impugned judgment dated 26.7.2005 dismissed the writ petition preferred by the appellant there against stating; The learned trial court while rejecting the application has found that the judgment and decree dated 02/09/1983 had merged into the order of this Court while rejecting review dated 01/07/1985. He, therefore, submits that the effect of the stay granted by the Apex Court was to stay the execution of the decree and as such the execution of the decree cannot be proceeded till vacation of the stay by the Apex Court. The execution of proceedings have been filed within a period of 12 days fr....
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....e a review petition was dismissed, the doctrine of merger will have any application whatsoever. It is one thing to say that the respondent was entitled to file an application for review in terms of Section 114 read with Order 47 Rule 1 of the Code of Civil Procedure, but it is another thing to say that the decree passed in favour of the respondent merged with the order dismissing the review application. Matter might have been different, if the review application had been allowed either wholly or in part in terms whereof an application for execution of the decree could have been filed only in terms of the modified decree. It is not the contention of the respondent that any order of stay was passed in the review application. There was, thus, no bar in proceeding with the execution case. 12. Keeping in view the afore noticed factual backdrop, we may notice the law applicable herein. Article 136 of the Limitation Act reads as under: 13. The decree of possession passed in favour of the respondent became enforceable immediately on its passing. An execution petition therefore was required to be filed within a period of 12 years. In W.B. Essential Commodities Supply Corpo....
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....f the judgment till the expiry of the period of limitation under Article 136 of the Limitation Act. See also Hasham Abbas Sayyad v. Usman Abbas Sayyad and Ors. (2007)2SCC355 14. In Raghunath Rai Bareja and Anr. v. Punjab National Bank and Ors. (2007)2SCC230 , this Court opined; 9. Under Article 136 to the Schedule of the Limitation Act, 1963 the period for applying for execution of any decree is 12 years from the date when the decree becomes enforceable. Since in the present case the final decree was passed and became enforceable on 15.1.1987, the period of limitation for filing an execution application expired on 15.1.1999 15. The order of purported stay passed by this Court in terms of its Order dated 21.3.1988 is also of no assistance to the plaintiff-decree holder. The Special Leave Petition was filed only against the Order dated 1.7.1985 refusing to review its judgment and decree dated 2.9.1983. The stay of operation of the Order dated 1.7.1985 for all intent and purport was meaningless as the review petition already stood dismissed. 16. Further direction of this Court that computation of mesne profit would go on and the same would be deposited by the appe....