TMI Blog2005 (1) TMI 744X X X X Extracts X X X X X X X X Extracts X X X X ..... promotion, salary etc. to him was illegal. The said suit ws decreed on 26.9.1979 (Annexures-1 and 2) the learned Second Additional Subordinate Judge, Buxar, and the said decree was challenged by the defendants-opposite parties (State of Bihar and another) in Title Appeal No. 168/1979 which was dismissed on merits with cost by the learned 5th Additional District Judge, Bhojpur, on 21.12.1985 (Annexures-3 and 4). Further more, against the said appellate decree the opposite parties preferred Second Appeal No. 152/1987 in this High Court and the same was dismissed on 16.9.1988 due to non-compliance of this Court's order and the said dismissal was recorded on 14.3.1989 (Annexure-5). 4. The learned counsel for the petitioner claimed that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to, and hence limitation should have been counted from 12.8.1988, the date on which the said representation was rejected. And thirdly, that such technicalities should not stand in the way of substantial justice as the decree was affirmed upto the High Court and hence the apposite party- defendants, which claims to be a welfare State, should not have taken such technical grounds and the learned Court below itself should have condoned the delay, in this connection, be relies upon two decisions of the Hon'ble Apex Court in cases of Ramnath Sao v. Gobardhan Sao, reported in 2002 (3) PLJR (SC), 247 and State of Bihar v. Kameshwar Pd. Singh, reported in 2000 (3) PLJR (SC), 81, by which long delays were condoned. 6. On the other hand, the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the materials on record, it is quite apparent that the main question in issue in this case is the date from which the period of limitation of twelve years would start for filing of the execution case. It is admitted fact that Execution Case No. 5/1998 was filed on 24.9.1998 and hence if limitation is counted from 21.12.1985, the date of the decree of Title Appeal No. 168/1979, as claimed by the opposite parties (defendants-judgment debtors), the execution case was time barred. But if limitation is counted from 16.9.1988, the date of dismissal of Second Appeal No. 152/1987, as claimed by the petitioner (plaintiff-decree holder), the execution case would be within the period of limitation of twelve years as prescribed under Article 136 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here is no doubt that any application by a party to an appellate Court asking it to set aside or revise a decision of the subordinate Court is an appeal within the ordinary acceptation of the term and that it is no less an appeal because it is irregular or incompetent. 10. Furthermore, so long as there is any question sub-judice between the parties, those affected shall not be compelled to pursue the so often thorny path of execution which, if the final result is against them, may lead to any disadvantage. Nor in such case as this is the judgment-debtor prejudiced as he has indeed obtained a boon of delay which is so dear to debtors and if the judgment-debtor is virtuously inclined, there is nothing to prevent his paying what he owes int ..... X X X X Extracts X X X X X X X X Extracts X X X X
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