Suit - Decree - Limitation

Question

Suit - Decree - Limitation

Brief History: (A to G)
A) I have filed a Civil Suit (specific performance) on the basis of “Agreement to sell" and prayer was made “to order the defendant to execute the sale deed”. After recording the evidence the Civil Court decree the suit in plaintiff’s favour on 20.01.1992.

B. I had filed a decree for execution on 28.01.1992 i. e. after 8 days after the date of judgment and Decree, as mentioned above.

C. Defendant filed first Appeal on 15.02.1992 (After 26 days) in concern appellate Court. The appellate court issued stay to execution on 22.02.1992 i. e. On 8th day after filing of F.A.

D. the First Appeal got dismissed in default on 05.01.2006.

E. I withdraw the decree filed on 28.01.1992 for personal reason.

F. Now there is no stay since the FA got dismissed till today.

G. I again filed the decree 23.06.2007 which is pending and under process before executing court.
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Questions: (1 to 7)
1) I want to withdraw the decree again due to changes in circumstances therefore please advise whether the limitation of 12 years has been already passed and it will not be correct to withdraw the said Decree, which is pending before court.
OR.
Period of limitation of 12 years is still in hand. Please let me know How to calculate the period of 12 years.

2). When my decree has become final decree and it is not a preliminary decree.

3. Whether final decree is a continuation of Original Suit or not and it has separate identity (Please inform citation in this regards).

4. When the suit is called as disposed off ? (At the time of preliminary decree or final decree).

5. Once the judgment and decree is passed by trial court then, What is a roll of Original Suit remains in a preliminary decree or final decree.

6. If a matter is compromised (before separate court or body) in between the parties to the suit (as mentioned above in Col.A), after filing the decree for execution then whether it is mandatory to register the said compromise Order before the executing court, where the decree is pending.

7. If such compromise is not register before the executing court, what are consequences DH or JD has to face?

Asked 7 years ago in Civil Law

Answer 1

1. limitation will run from the date of decree i.e. 20.1.92

2. the time spent in pursing the execution application which was later withdrawn will not be excluded

3. if the rights and liabilities of the parties are finally adjudicated and determined by the court then the order of 20.01.92 will be considered as a final decree

4. final decree is not continuation of original suit but culmination or end of original suit as the rights and liabilities of the parties are finally determined by the court by its final decree

5. once final judgment is passed, the original suit is finally disposed of

6. suit can be called as disposed of only on passing of final decree

7. you can file an application to the court which passed the final decree of 20.1.92 to reopen the suit and modify the final decree in terms of the out of court compromise settlement arrived at between the parties

Yusuf Rampurawala

Advocate, Mumbai

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Answer 2

Firstly, Sir, there can be no decree of preliminary nature against which you file execution of it as it is always the final one.

Secondly, if it is the preliminary decree and not complied by the decadent then an application of order 39 rule 2A is been filed for the compliance of it before the same court.

Thirdly, once you get the final decree the limitation period starts to exercise your right of justice.

Fourhtly, even if you have withdrawn ten again the limitation period starts from the date when you withdrawn it, but not the date when you got the decree.

Sanjay Baniwal

Advocate, South Delhi

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Answer 3

It would not be advisable t with draw the execution application

2) period of 12 years would be from date of dismissal of appeal

3) court passing decree must have passed orders directing you to make balance payment . On balance payment being made defendant has to execute sale deed within stipulated period

4) in event of failure to execute sale deed you ca apply to court and have sale deed executed through the court

5) madras HC has held that decree passed in specific performance suit is in nature of preliminary decree and that decree obtains final form after plaintiff has made deposit of sale consideration and has thereafter obtained actual sale of property

6) suit continues till final decree is passed

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Advocate, Mumbai

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Answer 4

The limitation for executing the decree shall be 12 years from the date of decree, however if any appeal was pending against the decision of the trial court, then the date of disposal of the appeal can be taken up for computing the limitation period.

There is no preliminary decree in specific performance of contract, the decree or judgment pronounced shall be the final.

The final decree or the judgment passed in the suit is termed as disposal of suit.

The suit will be disposed after FD application has been disposed.

You dont confused about pre-decree of final decree. In a specific performance suit there is no question of pre or final decree. Once the court passed decree or judgment then the suit is termed to be have been disposed.

The compromise may be intimated to the executing court while deciding the execution petition.

If there is no compromise then the execution petition may continue to be tried till disposal.

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