IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.18120 of 2011 Birendra Kumar Gupta Versus Krishna Mohan Sharma ---------------------------------- O R D E R 08. 08.12.2011. 1. I have heard the learned counsel, Mr. Chitragupta Prasad on behalf of the petitioner and the learned senior counsel, Mr. S.S. Dwivedi on behalf of the respondent. 2. This application under Article 227 of the Constitution of India has been filed against the order dated 28.09.2007 passed by Second Subordinate Judge, Ara in execution Case No.3 of 2007 whereby the Court below dismissed the execution case. 3. The learned counsel for the petitioner submitted that the learned executing Court rejected the execution case on two accounts, firstly, that the execution case is barred by law of limitation and secondly that photocopy of the decree have been filed and no proper notice has been served on the Judgment debtor. According to the learned counsel, the final decree was passed on 22.09.1997 and the execution case was filed on 15.03.2007, therefore, the execution was within 12 years but the learned Court below wrongly held that it is barred by law of limitation. So - 2 - far filing of photocopy of final decree is concerned, the learned executing Court should have directed the petitioner to file certified copy of the final decree or could have called for the record of execution case No.7 of 1997 which had been dismissed because in that case, the certified copy of the final decree was filed. So far non-service of notice is concerned, the executing Court could have directed the petitioner to take steps for service of notice and moreover, the respondent only is the objector who filed the application for recall of the order whereby the Pleader Commissioner was appointed. No other respondents are interested in the execution case and the final decree is executable against the present respondent only. 4. On the other hand, the learned senior counsel, Mr. S.S. Dwivedi, appearing on behalf of the respondent took a preliminary objection regarding maintainability of the present application under Article 227 of the Constitution of India on the ground that there were about 33 defendants in the suit who were party in the execution case but in this application only the respondent has been made party. The learned counsel further submitted that on the basis of photocopy, execution case was not maintainable and moreover in fact, no final decree has been passed in favour of the present petitioner. The petitioner has filed - 3 - this application before the High Court suppressing various facts and that the petitioner is not decree holder but in the execution case, he described himself as decree holder. The petitioner was defendant No.27 and the present respondent was also the defendant in the suit. In such circumstances, the execution case itself was not maintainable. Since the final decree was not prepared in favour of the present petitioner, it was opened for the petitioner to have prayed for preparation of final decree and it is well settled that in partition suit more than one preliminary decree and moreover one final decree can be prepared. 5. In reply to the above submission, the learned counsel for the petitioner submitted that final decree have been prepared in the name of the petitioner and that the other defendants are not required to be heard in this matter because they are not objecting nor the execution case has been dismissed at their instance. Here in the preliminary decree, the share of the petitioner have been defined and accordingly, a separate Thakhta has been allotted in favor of the petitioner and in partition suit, it is well settled that every defendant is in the position of the plaintiff and, therefore, this objection raised by the petitioner is not acceptable. 6. From perusal of the impugned order, it - 4 - appears that the learned Court below only recorded the submissions of the parties and held that without a final decree, there can be no execution. Petitioner cunningly annexed the photocopy of the decree which was prepared in the name of Ramraj Sharma. So far this reasoning is concerned, it appears that the learned Court below did not consider the submission of the petitioner that in fact final decree has been passed allotting a Thakta in favour of the present petitioner. If at all certified copy was necessary then the executing Court could have granted time to the petitioner to produce the same. The learned Court below next observed that execution case No.7 of 1997 was filed by the plaintiff, Ram Rai Sharma which has been dismissed. In my opinion, only because the execution case No.7 of 1997 filed by Ram Rai Sharma, it cannot be said that the present execution case is not maintainable because in partition suit, different Thakhtas are allotted in favor of different persons. If a separate Thakhta has been allotted in favour of the petitioner, he can execute the same. So far the reasoning of the Court below that the execution case has been filed after 12 years from preliminary decree is concerned, is also not tenable because preliminary decree is not executable. The final decree is always executed. The limitation will start running from the date of the Judgment and Decree, i.e., final decree. In - 5 - other words from the date when the Pleader Commissioner report was confirmed as has been held by the Hon’ble Apex Court in 2005 (SC) 2564 and again in A.I.R. 2006 (SC) 2248. According to the petitioner in this case, the Judgment and final decree is dated 20.09.1997, therefore, according to Article 136 of the Limitation Act, the execution can be filed within 12 years from that date. This aspect of matter has not been examined by the executing Court. 7. In view of the above facts and circumstances of the case, in my opinion, the impugned order is unsustainable in the eye of law. Thus, the impugned order is set aside and the matter is remanded back to the executing Court for passing a fresh order within 3 months from receipt of a copy of this order after hearing the parties and considering the above facts alleged by the petitioner. Thus this writ application is allowed. The respondent herein is present, therefore, no notice be served again on him. Parties are directed to appear before the Court below within 15 days from today. Patna High Court, Patna The 8thday of December, 2011 Sanjeev/N.A.F.R. (Mungeshwar Sahoo,J.)