IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Civil Revision No. 88 of 2010 Date of decision: 26.05.2011 ________________________________________________________________ Hari Ram & others. .....Petitioners. Versus Leela Devi & others. .....Respondents. Coram The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? Yes. ________________________________________________________________ For the petitioners: Mr. Varun Rana, Advocate. For the respondents: Mr. Digvijay Singh, Advocate. V.K. Sharma, J. (Oral). The challenge herein in this Civil Revision Petition is against order dated 06.05.2010, Annexure P-7, whereby the learned Executing Court has allowed the application under Order 20 Rule 18 of the Code of Civil Procedure (in short 'CPC') filed by the decree holder, Shri Gian Chand, who was predecessor-in-interest of the respondents herein, against the judgment debtors, who are petitioners herein, in the following terms: “Ld. Counsel for the Jds/respondents has resisted this application on the ground that it is barred by limitation and secondly on the ground it is an exparte decree and an application for setting aside exparte decree is pending before this court for disposal, therfore, this application is pre-mature. As per article 136 of Limitation Act the limitation for execution of any decree other than a decree granting a mandatory decree or order of any civil court is 12 years from the date when decree or order becomes enforceable. Decree has been passed on dated 11.9.1998 and this application has been filed in this 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. ...2... court on 29.3.2007. Therefore, this application to enforce a decree is within time i.e. 12 years. Secondly the contention of the ld. Counsel for the respondent is that it is an exparte decree and an application to set aside exparte order is pending before this court for adjudication, but record of that application has not been summoned to show this fact that application is still pending for disposal nor any case number, date of filing of the application has been stated in this application. Moreover, the plaintiff has filed the suit for possession by way of partition of coparcenary property and this court was pleased to separate the share of parties of a coparcenary property in which Gian Chand was given 1/5th share of the suit land. Purpose of the applicant is solved if his 1/5th share has been separated and possession is to be delivered to the applicant. As per Order 20, R. 18 CPC could may direct the Collector to get the suit land partitioned. Merely not writing the word preliminary in the decree does not effect the rights of the parties. Therefore, in the interest of justice this application is allowed and Tehsildar AC, 1st Grade, Sundernagar is appointed Local Commissioner. He is directed to get the suit land partition in accordance with the decree passed by this court in civil suit No. 37/1994 decided on 11.9.1998. Local Commissioner fee is assessed as Rs. 2000/- which shall be deposited by the applicant in this court within 7 days. Thereafter reference to the Local Commissioner be issued and his report is awaited in this court on dated 19.6.2010.” 2. The learned counsel for the petitioners submits that while passing the decree dated 11th September, 1998, the learned Trial/Executing Court had omitted to pass the requisite orders in terms of sub-rule(1) of Rule 18 of Order 20 CPC by directing the Collector or any Gazetted subordinate of the Collector to carryout partition or separation in terms of said sub-rule. However, the submission on the face of it appears to have been made simply so as to be rejected for the reasons that the decree dated 11th September, 1998, had specified the respective shares of the parties. This decree could very well have been executed within 12 years and since it was passed on 11th September, 1998 and the impugned order having been passed on ...3... 06.05.2010 is well within limitation. Even otherwise there is no limitation for execution of a preliminary decree passed in suit for partition. It being so, the direction issued by the learned Executing Court to the Assistant Collector Grade-I, Sundernagar to partition the suit land in accordance with the decree dated 11th September, 1998, in Civil Suit No. 37 of 1994 cannot be assailed on the above ground pressed into service on behalf of the petitioner. In this conclusion of mine, I am fortified by the law laid down by the Hon'ble Apex Court in Shub Karan Bubna alias Shub Karan Prasad bubna vs. Sita Saran Bubna and others, (2009) 9 Supreme Court Cases 689. 3. In view of the above, the petition, being without any merit, is dismissed with no order as to costs, so also pending CMP(s), if any. (V.K. Sharma) Judge 26th May, 2011 (virender)