Case Note & Summary
The petitioner, Balasaheb Gulabrao Salunke, filed a Writ Petition under Article 227 of the Constitution of India challenging the order passed by the Civil Judge, Senior Division, Latur, in Execution Application No. 1/2015, whereby the executing court dismissed the execution application as barred by limitation. The petitioner had obtained a decree for specific performance of contract against the respondents (judgment debtors) on 30th April 2001. The decree was confirmed in appeal on 30th June 2005. The petitioner filed the execution application on 9th February 2015, i.e., after about 13 years and 9 months from the date of the decree. The respondents raised an objection that the execution application was barred by limitation under Article 136 of the Limitation Act, 1963, which prescribes a period of 12 years for execution of a decree. The executing court upheld the objection and dismissed the execution application. The petitioner contended that the respondents had participated in the execution proceedings and had not raised the objection at the earliest opportunity, and therefore, they had waived their right to object. The High Court examined the record and found that the respondents had filed a reply to the execution application and had also participated in the proceedings before the executing court. The court held that the objection regarding limitation could not be allowed to be raised at a belated stage when the judgment debtor had actively participated and waived such objection. The court relied on the principle that a party cannot approbate and reprobate. Accordingly, the High Court allowed the writ petition, set aside the impugned order, and directed the executing court to proceed with the execution application on its own merits.
Headnote
A) Civil Procedure - Execution of Decree - Limitation - Article 136 of Limitation Act, 1963 - Execution application filed beyond 12 years from date of decree - Judgment debtor participated in proceedings and did not raise objection at earliest opportunity - Held that objection as to maintainability on ground of limitation cannot be allowed to be raised at a belated stage when the judgment debtor had actively participated and waived such objection (Paras 5-8). B) Civil Procedure - Execution of Decree - Waiver - Participation in execution proceedings without objecting to limitation amounts to waiver of right to object - Held that the judgment debtor, by participating in the execution proceedings and not raising the plea of limitation at the threshold, is estopped from raising it later (Paras 6-8).
Issue of Consideration
Whether the execution application filed by the decree holder was barred by limitation under Article 136 of the Limitation Act, 1963, and whether the judgment debtor can raise the issue of maintainability at a belated stage after participating in the execution proceedings.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 30th June 2015 passed by the Civil Judge, Senior Division, Latur, and directed the executing court to proceed with Execution Application No. 1/2015 on its own merits in accordance with law.
Law Points
- Execution of decree
- limitation for execution
- Article 136 Limitation Act
- 1963
- maintainability of execution application
- waiver of objection
- participation in proceedings
- Order 21 CPC
