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Tehl Chand and ors. Vs. Noor Khan - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 969 of 1984
Judge
Reported in28(1985)DLT32; 1985RLR285
ActsLimitation Act, 1908 - Article 136; Delhi and Ajmer Rent Control Act, 1952; Slum Area (Improvement and Clearance) Act, 1956 - Sections 19
AppellantTehl Chand and ors.
RespondentNoor Khan
Advocates: Sunil Malhotra and; S.J. Mathur, Advs
Cases ReferredIn Patel Chaturbhai Nanabhai v. Patel Mohanbhai Nanabhai and
Excerpt:
.....application, permission under slums act was granted on 8-5-1981. the application for execution was dismissed on the ground that the decree was a nullity, barred by time and became not executable.; that there is no limitation on the right of the decree-holder to make application under section 19 and the status of judgment debtor changed between 1962 to 1980, permission could be obtained only on 8-5-1981. execution application is within time. - .....the competent authority under the said act as the suit premises are situated in a slum area. the decree-holder applied for permission to execute the decree but it was refused on 2nd april, 1962. his appeal filed under section 20 of the slum areas (improvement and clearance) act, 1956 was also dimissed. subsequently it appears, the decree-holder filed a suit for possession on the basis of title but his suit was also dismissed on 1st april, 1968. (2) tehl chand, decree-holder died leaving behind his sons des raj and nand lal. they applied for permission under section 19 of the slum areas (improvement and clearance) act, 1956 to execute the decree dated 19th february, 1960. they also filed an application on 17th july, 1980 for execution of the said decree. the judgment debtor noor khan.....
Judgment:

(1) The question for decision in this revision petition is : Whether the execution application is within limitation Tehl Chand, father of the petitioners filed a suit for eviction of the respondent Noor Khan on 20th May, 1958 under section 13(1)(e) of the Delhi and Ajmer Rent Control Act, 1952 with respect to a portion of property No. 10020 Gali Naiwala, Nawab Ganj, Pul Bangash, Delhi. He obtained a decree for his eviction on 19th February 1960. Under section 19(1)(b) of the Slum- Areas (Improvement and Clearance) Act, 1956 the decree becomes executable only after obtaining the permission from the Competent Authority under the said Act as the suit premises are situated in a slum area. The decree-holder applied for permission to execute the decree but it was refused on 2nd April, 1962. His appeal filed under section 20 of the Slum Areas (Improvement and Clearance) Act, 1956 was also dimissed. Subsequently it appears, the decree-holder filed a suit for possession on the basis of title but his suit was also dismissed on 1st April, 1968.

(2) Tehl Chand, decree-holder died leaving behind his sons Des Raj and Nand Lal. They applied for permission under section 19 of the Slum Areas (Improvement and Clearance) Act, 1956 to execute the decree dated 19th February, 1960. They also filed an application on 17th July, 1980 for execution of the said decree. The judgment debtor Noor Khan filed objections. During the pendency of the Execution application the decree-holder was granted permission on 8th May, 1981 under section 19 of the Slum Areas (Improvement and Clearance) Act, 1956 to execute the decree dated 19th February, 1960.

(3) The judgment debtor had objected that the decree by the civil court was a nullity, it was barred by time and was not executable without permission of the Slum Authority. The execution court by the impugned order dated 15th October, 1984 held that the decree was not a nullity that though permission had been obtained the decree became unexcitable as the decree-holder did not take any action for a long time and the execution application was barred by time.

(4) Learned counsel for the petitioner submits that under Article 136 of the Limitation Act, 1963 the decree became enforceable only one on the date when the permission under the Slum Areas (Improvement and Clearance) Act, 1956 was granted for execution of the decree and the limitation commenced from 8th May, 1981 when the decree became enforceable.

(5) Learned counsel for the respondent-judgment debtor submits that the petitioner filed an application for permission which was dismissed on 2nd April, 1962 and the appeal was also dismissed and thereforee he was not entitled to file a fresh application seeking permission to execute the decree and the permission granted on 8th May, 1981 is contrary to law.

(6) Article 136 of the Limitation Act, 1963 reads as under :

----------------------------------------------------------------------- Description of Period of Time from which period begins application Limitation to run 136. For the execution Twelve When the decree or order becomes corporation of any years enforceable or where the decree or decree (other any subsequent order directs any payment than a decree of money or the delivery of any granting a property to be made at a certain mandatory in- date or at, recurring periods, when junction) or default in making the payment or order of any delivery in respect of which execution civil court, is sought, takes place : Provided that an application for the enforcement or execution of a decree granting a perpetual injunction shall not be subject to any period of limitation.' Under this Article a decree is executable within a period of 12 years from the date when it becomes enforceable. If the decree is not enforceable no execution lies and the period of limitation does not commence. It is not disputed that the permission to execute the decree dated 19th February, 1960 was obtained for the first time on 8th May, 1981. The decree thus became enforceable on 8th May, 1981 and the period of 12 years under Article 136 of the Limitation Act commenced from that date and not earlier.

(7) In Abdal Rashid v. Sri Sitaramji Maharaja Brajman and Ors. : AIR1974All275 a compromise decree for possession of lands in dispute was passed on 27th January, 1954. The decree provided that the judgment debtor would remove the constructions and deliver possession to the decree-holder after the latter served him with a notice giving him two months' time to remove the construction. The decree-holder served a notice on 22nd October, 1962 asking the judgment debtor to deliver possession. The judgment debtor did not deliver possession. The execution application was filed on 2nd May, 1963. It was held that the execution application was not barred by time. that immediate execution of the decree was negatived by the terms of the compromise decree and that a period of limitation commenced from the time when the decree became executable.

(8) In Shri Chandra Mouli Deva v. Kimar Binoya Nand Singh and others, Air 1976 Pat 208 referring to Article 136 of the Limitation Act, 1963 it has been observed that cases are not unknown when decrees become enforceable on some future date or on the happening of certain specified event. It has been further observed that the decree comes into existence as soon as the judgment is pronounced but it is executable only when it becomes enforceable

(9) In Patel Chaturbhai Nanabhai v. Patel Mohanbhai Nanabhai and another : AIR1972Guj217 it has been observed that when the decree is not immediately capable of execution but on the happening of the specified event, the right to apply for execution arises only when the decree becomes enforceable. I am, thereforee, of the opinion that the decree in the instant case became enforceable only on 8th May, 1981 when the permission was granted to the decree holder under section 19 of the Slum Areas (Improvement and Clearance) Act, 1956. The execution application is, thereforee, within time.

(10) Learned counsel for the judgment debtor respondent submits that the permission was refused on 2nd April, 1962 and thereforee the decree-holder had no right to make a fresh application seeking permission to execute the decree. I do not agree. There is no limitation on the right of the decree- holder to make application under section 19 of the Slum Areas (Improvement and Clearance) Act, 1956 seeking permission to execute the decree. It appears that the status of the judgment debtor changed during the period from 1962 to 1980 and thereforee the decree-holder was in a position to obtain permission to execute the decree on 8th May, 1981.

(11) I am, thereforee, of the opinion that the judgment and order of the executing court holding the execution application to be barred by time is contrary to law and it acted illegally in the exercise of its jurisdiction. The revision petition is accepted setting aside the impugned order. The execution application is held to be within time. No order point has been argued.

(12) Parties are directed to appear before the executing court on 12th April, 1985 for the issue of warrant of possession with respect to the property in suit in accordance with law. No order as to costs.


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