A decree-holder is entitled to present successive applications for the execution of the same decree unless
(a) The application is barred by virtue of the general principles of res judicata, which apply to execution proceedings. The principle is that when once a question has been raised and decided or a certain construction has been put on a decree in a former execution proceeding, the decision, even if erroneous, is binding upon the parties;’ or
(b) The application is barred under Article 136 or Article 135 of the Limitation Act (Act No. 36 of 1963). Article 136 of the Limitation Act lays down that for the execution of any decree (other than a decree granting a mandatory injunction) or order of any civil court the period of limitation is 12 years and the time from which the period begins to run is when the decree or order becomes enforceable or where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods when default in making the payment or delivery in respect of which execution is sought, takes place: provided that an application for the enforcement or execution of a decree granting a perpetual injunction shall not be subject to any period of limitation.
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ADVERTISEMENTS:
Under Article 135 of the Limitation Act the period of limitation for the enforcement of a decree granting a mandatory injunction is three years from the date of decree or where a date is fixed for performance, such date. As stated, section 48 of the Code of Civil Procedure which dealt with the limit of time for execution has been repealed by section 28 of the Indian Limitation Act, 1963.
Time Barred:
Execution of decree for money filed after 12 years from the date of passing decree is barred by limitation.
ADVERTISEMENTS:
Order XXI, General:
If after filing of an execution petition in time, the decree holder or judgment-debtor dies, then there is no abatement of the execution petition. Court can fix a reasonable time for bringing legal representatives on record.
This is the position under Order XXII, Rule 12 and Order XXI, C.P.C. Rent Controller is deemed to be civil court, so in execution of eviction case death of decree holder or judgment-debtor does not result in abatement of execution petition. It remains pending and legal representatives can be brought an record within reasonable time.
Execution Proceedings and Res Judicata:
ADVERTISEMENTS:
There is a difference between the dismissal of suits and dismissal of execution applications for default when they are not pressed. In the case of dismissal of execution petitions for default or on the ground that they are not pressed, the only point that is decided is that that application is dismissed and there is no bar in the way of a fresh application being made, if necessary, the next day with the same prayer; and unless it can be said there was a decision or adjudication which either directly decided the question on which the parties are at issue or which must be deemed to have impliedly decided it on the ground that the order could not have been made without such implied decision having been arrived at, the rule of res judicata cannot operate or apply.