Content Provider | Supreme Court of India |
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e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | Limitation Act 1963-Article 136-Decree-Execution of- Limitation for-Decree for possession in favour of respondents in c second appeal-Review petition thereagainst dismissed-Supreme Court staying order in revision petition and directing trial court to ascertain mesne profits-Execution petition |
Content Type | Text |
Resource Type | Law Judgement |
Jurisdiction | India |
Case Type | Appeal |
Court | Supreme Court of India |
Disposal Nature | Appeal Allowed |
Headnote | Limitation Act, 1963 - Article 136 - Decree - Execution of - Limitation for - Decree for possession in favour of respondents in second appeal - Review petition thereagainst dismissed - Supreme Court staying order in revision petition and directing trial court to ascertain mesne profits - Execution petition - Challenge to, by appellants on the ground that it was time barred - Courts below holding that the petition was within limitation as stay order to the order of High Court was operating-Sustainability of - Held: Not sustainable - SLP was filed only against review petition-Stay of operation of order in review petition was meaningless since the review petition was already dismissed - Decree passed by High Court was not a composite one - Proceeding for computation of mesne profit was to be instituted which did not come in the way of execution of decree - Also it cannot be said that the review petition having been dismissed, doctrine a/merger was applicable - Code of Civil Procedure, 1908 - O 20 r 12 and s. 114 r/w O 47 r 1.Predecessor-in-interest of the respondents filed suit for possession and the same was dismissed. Appeal was also dismissed. However, the second appeal was allowed and suit for possession was decreed. Predecessor-in-interest of appellants filed review application which was dismissed. Appellant filed SLP and leave was granted. This Court stayed the order of High Court in second appeal and directed the trial court to ascertain mesne profits to be deposited by appellants. Thereafter, appeal was dismissed being incompetent holding that no appeal was maintainable in terms of Order 47 Rule 7 CPC rejecting a review application. Meanwhile, respondent filed application for executing the decree. Appellant contended that the application was not maintainable since the same was time barred. Executing court held that the petition was within limitation as Order of stay to the order of High Court was operating. Appellant filed writ petition. Single Judge of High Court dismissed the writ petition upholding the order of the executing court. Hence the present appeal.Appellant contended that the Courts below acted illegally and without jurisdiction in passing the impugned judgment insofar as they failed to take into consideration that no order was passed by this Court staying execution of the proceedings or operation of the judgment and decree.Respondents contended that High Court passed composite decree and in view of the fact that this Court directed computation of mesne profit, the execution case was not barred by limitation; and that an Order passed in such proceedings would merge with the main judgment and decree. |
Judge | Hon'ble Mr. Justice S.B. Sinha |
Neutral Citation | 2007 INSC 1167 |
Petitioner | Manohar S/o Shankar Nale And Ors. |
Respondent | Jaipalsing S/o Shivlalsing Rajput And Ors. |
SCR | [2007] 12 S.C.R. 364 |
Judgement Date | 2007-11-20 |
Case Number | 5323 |
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