TMI Blog2007 (11) TMI 694X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 26.7.2005 passed by a learned Single Judge of the Bombay High Court, Nagpur Bench at Nagpur in Writ Petition No. 5927 of 2004 affirming an order dated 26.10.2004 passed by the Civil Judge, Junior Division in Regular Darkhast No. 32 of 2001. 3. Shivlalsing, predecessor-in-interest of the respondents filed a suit in the Court of Civil Judge, Junior Division, Malkapur. The said suit was marked as Regular Civil Suit No. 250/1965. It was dismissed on 24.12.1968. An appeal preferred there against was also dismissed. However, a second appeal filed by the plaintiff-decree holder was allowed upon setting aside the judgment and decree of the Courts' below, the operative portion whereof reads as under: For the reasons stated in the acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e at Bombay (Nagpur Bench) Nagpur in Miscellaneous Civil Application No. 134 of 1984 in Second Appeal No. 158 of 1972 be and is hereby stayed and the Civil Judge, Junior Division, Malkapur, Maharashtra be and is hereby directed to ascertain the amount of mesne profits which shall be deposited by the appellant herein. 6. The said appeal, however, came to be dismissed as being incompetent by this Court opining that no appeal lay in terms of Order 47 Rule 7 of the Code of Civil Procedure rejecting a review application. 7. Admittedly, an application for executing the said decree was filed by the decree holder only on 10.12.2001. Appellant, having been noticed in the said execution proceeding, inter alia, raised a contention about maintain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udge of the Bombay High Court, Nagpur Bench, Nagpur by reason of the impugned judgment dated 26.7.2005 dismissed the writ petition preferred by the appellant there against stating; The learned trial court while rejecting the application has found that the judgment and decree dated 02/09/1983 had merged into the order of this Court while rejecting review dated 01/07/1985. He, therefore, submits that the effect of the stay granted by the Apex Court was to stay the execution of the decree and as such the execution of the decree cannot be proceeded till vacation of the stay by the Apex Court. The execution of proceedings have been filed within a period of 12 days from the date on which the Apex Court had vacated the stay. In that view of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated in the map Exh. 30, out of Survey No. 59/1 measuring 3 acres 12 gunthas. Respondent was also found to be entitled to an enquiry in terms of Order 20 Rule 12 of the Code of Civil Procedure in regard to computation of mesne profit from the date of the institution of the suit, till the date of the actual delivery of possession. It is therefore, not correct to contend that the decree was a composite one. The proceeding for computation of mesne profit required to be undertaken in terms of Order 20 Rule 12 of the Code of Civil Procedure was subject to institution of a proceeding but, by reason thereof, the execution of the decree in regard to the possession of 30 gunthas of land was not required to be awaited till the outcome. 11. It is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be deemed to come into existence immediately on the pronouncement of the judgment. But it is a fact of which judicial notice may be taken of that drawing up and signing of the decree takes some time after the pronouncement of the judgment; the Code of Civil Procedure itself enjoins that the decree shall be drawn up expeditiously and in any case within 15 days from the date of the judgment. If the decree were to bear the date when it is actually drawn up and signed then that date will be incompatible with the date of the judgment. This incongruity is taken care of by Order 20 Rule 7 CPC which, inter alia, provides that the decree shall bear the date and the day on which the judgment was pronounced. (2) Rule 6A enjoins that the last par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. See also Hasham Abbas Sayyad v. Usman Abbas Sayyad and Ors. (2007)2SCC355 14. In Raghunath Rai Bareja and Anr. v. Punjab National Bank and Ors. (2007)2SCC230 , this Court opined; 9. Under Article 136 to the Schedule of the Limitation Act, 1963 the period for applying for execution of any decree is 12 years from the date when the decree becomes enforceable. Since in the present case the final decree was passed and became enforceable on 15.1.1987, the period of limitation for filing an execution application expired on 15.1.1999 15. The order of purported stay passed by this Court in terms of its Order dated 21.3.1988 is also of no assistance to the plaintiff-decree holder. The Special Leave Petition was filed only against the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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