1 CRA No.119/11 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION No.119 of 2011 Baburao Tatoba Medhe ... Applicant versus Kedrai Balnath Dawari & ors. ... Respondents ... Mr.Amit B. Borkar for the applicant. Mr.Manoj Patil for the respondents CORAM : D.G. KARNIK, J DATED : 10th June 2011 P.C. 1. This revision application is directed against the rejection of the application of the petitioner (judgment debtor) for dismissal of an execution petition on the ground that it is barred by limitation. Petitioner also challenges the order of the appellate court confirming the initial order of the executing court. 2. On 16 January 1971, a preliminary decree for redemption of usufructuary mortgage was passed against the petitioner in a suit filed by the respondents. After payment of the money as ordered in the preliminary decree, respondents applied for a final decree and by an order dated 23 February 1994, the Court passed a final decree of redemption, delivery of possession and also a direction to the petitioner to execute a deed of re-conveyance. The respondents 2 CRA No.119/11 filed an execution petition for execution of the final decree in January 2006. The petitioner opposed the execution petition on the ground that it was barred by limitation as it was filed after 12 years of the preliminary decree which in the facts and circumstances of the case was to be regarded as the final decree. The contention was rejected by the trial court as well as by the appellate court. Hence, this revision application. 3. Learned counsel for the petitioner submitted that the preliminary decree dated 16 January 1971 itself was the final decree inasmuch as it directed payment of the principal sum by the respondents to the petitioner and handing over of the possession by the petitioner. Nothing further was required to be done by the court and therefore, it was not necessary to pass the final decree. In support, he referred to and relied upon a decision of this court in Radhabai Yeshwant Dhotre Vs. Abaji Janeji Naihedi & ors, 1995(4) Bom.C.R.No.408. In paragraph no.17 of the decision, the Court held that the final decree passed by the trial court on the assumption that a preliminary decree was already passed, though in fact it was never passed, was not invalid. The decision does not lay down that it is not necessary at all to pass a preliminary decree before passing of a final decree. It is only, on the facts of that case, held that the passing of a final decree without passing of a preliminary decree was not invalid. 4. In the present case, admittedly, two decrees have been passed. First is the preliminary decree dated 16 January 1971 and second is the final decree dated 23 February 1994. The preliminary decree 3 CRA No.119/11 directed the respondents to pay the principal sum of Rs.99/- to the petitioner and further directed that on payment by the respondents to the petitioner, quiet and peaceful possession of the suit property be handed over by the petitioner and other co-defendants to the respondents. The preliminary decree contemplated payment. It did not direct execution of a re-conveyance and rightly so because the re-conveyance could be executed only after the payment of principal amount due was made. The respondents made the payment and applied for a final decree. The final decree was accordingly passed directing the petitioner and other co-defendants to execute a deed of re-conveyance. In the circumstances, it cannot be said that the initial decree dated 17 January 1971 itself was the final decree. Admitted, the execution petition was filed within 12 years of the final decree and hence it was within limitation. The executing court as well as the appellate court have rightly rejected the petitioner’s contention that the execution petition was barred by limitation. There is no merit in the revision application which is hereby dismissed. In view of the fact that the preliminary decree has been passed nearly 40 years ago, the executing court shall proceed with the execution petition expeditiously and without granting any unwarranted adjournments. (D.G.KARNIK, J)