1. Rule. Mr.Bhavesh Hajare, learned advocate waives service of notice of Rule on behalf of respondent Nos.1 & 4 and Mr.B.T.Rao, learned advocate waives service of notice of Rule on behalf of respondent Nos.2 & 3.
2. In the facts and circumstances of the case and with the consent of the learned advocates appearing on behalf of the respective parties, the present Civil Revision Application is taken up for final hearing today.
3. The present Civil Revision Application under section 115 of the Code of Civil Procedure has been preferred by the petitioner herein - original opponent No.2 of Execution Petition No.124 of 2002 - 3rd party to the suit challenging the impugned order dated 19/09/2011 passed by learned Principal Senior Civil Judge, Rajkot below Exh-18, by which, learned Trial Court has dismissed the said application Exh.18, by which the applicant herein prayed to raise/frame preliminary issue with respect to limitation in Execution Petition No.124 of 2002.
4. As the present Civil Revision Application is in very narrow compass, earlier proceedings are not required to be referred to and, therefore, this Court is not referring to the earlier proceedings and judgement and decree passed by learned Trial Court and confirmed by this Court in First Appeal. It appears that judgement and decree passed by learned Civil Judge (S.D.), Rajkot dated 21/02/1978 granting mandatory injunction by directing defendant Nos.1 and 2 to remove fencing made on Plot No.8 and further directing original defendant Nos.1 and 2 to hand over peaceful and vacant possession of such encroached land of Plot No.8 to original plaintiff and by further granting perpetual injunction granting against defendant Nos.1 and 2 from interfering possession of suit Plot No.8 of plaintiff in future after plaintiff would be put in possession of plot No.8, confirmed by this Court in First Appeal No.1045 of 1978 was sought to be executed by original plaintiff by filing Execution Petition No.124 of 2002. In the said Execution Petition, original respondent No.2 - third party to the suit submitted application Exh.18 to frame preliminary issue with respect to limitation by submitting that as the same has been filed after a period of 12 years. That learned Trial Court by impugned order dated 19/09/2011 dismissed the said application on merits by holding that the application cannot be said to be barred by limitation.
Being aggrieved by and dissatisfied with the impugned judgement and order dated 19/09/2011 passed by learned Principal Senior Civil Judge, Rajkot in Execution Petition No.124 of 2002, the petitioner herein - original Opponent No.2 – third party, who submitted application Exh.18, has preferred the present Civil Revision Application under section 115 of the Code of Civil Procedure.
5. Mr.S.M.Shah, learned advocate appearing on behalf of the petitioner herein has vehemently submitted that while deciding the application Exh.18, by which, it was requested to frame preliminary issue with respect to limitation and without raising preliminary issue with respect to limitation, learned Trial Court is not justified in deciding the said issue and in holding that execution petition is within period of limitation. In support of his above submission, he has relied upon decision rendered by learned Single Judge in the case of Bharat Heavy Electricals Ltd. V/s. General Contract Company reported in 1995(2) GLH 1029. He has also relied upon decision of this Court rendered in the case of Uttar Gujarat Vij Co.Ltd. V/s. Dhulabhai Kodarbhai Vankar and another reported in 2009(1) GLH 1. By making above submissions and relying upon above decisions, it is requested to allow the present Civil Revision Application.
6. Mr.B.T.Rao, learned advocate appearing on behalf of contesting respondent Nos.2 and 3 - original plaintiffs has submitted that as such the issue with respect to limitation was raised by very petitioner by submitting application Exh.17 and it has been specifically held while deciding application Exh.17 that the execution petition is within period of limitation and only with a view to delay the proceedings and execution of the decree, which came to be confirmed by this Court, application Exh.18 is submitted. It is further submitted that no illegality has been committed by learned Executing Court in holding that execution petition is within the period of limitation. The issue with respect to limitation is already decided by learned Executing Court and, therefore, no illegality has been committed by learned Executing Court in not framing issue with respect to limitation, which is earlier decided while deciding application Exh.17.
It is submitted by Mr.B.T.Rao, learned advocate appearing on behalf of the contesting respondents - original plaintiffs that in case this Court is inclined to allow the present Civil Revision Application and to quash and set aside the impugned order passed below Exh.18 and to remand the matter to the learned Trial Court to frame preliminary issue with respect to limitation and thereafter to decide the same on merits, it is requested to make suitable observations that this Court has not expressed anything on merits with respect to limitation and learned Executing Court to decide preliminary issue at the earliest and within stipulated time.
7. Heard learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that by submitting application Exh.18, the petitioner herein had requested learned Executing Court to raise preliminary issue with respect to limitation and decide it. It is not disputed that by passing the impugned order though learned Executing Court has dismissed the application and has refused to frame preliminary issue still learned Executing Court has decided the same on merits that execution petition is within period of limitation. Unless and until appropriate issue is framed, it is not open for the learned Court to decide the said issue on merits. Identical question came to be considered by this Court in the case of Bharat Heavy Electrical Ltd. (supra) and it is held that while deciding the application to frame an issue as to jurisdiction as a preliminary issue, the trial court cannot decide on merits of the issue treating the issue as raised. Similar view has been expressed by learned Single Judge in the case of Dhulabhai Kodarbhai Vankar and another (supra) and it is held that without framing the issue, learned court, on its own could not decide the issue on merits. Under the circumstances, the impugned order passed by learned Executing Court deciding the issue with respect to limitation without raising the issue/ preliminary issue, cannot be sustained.
Under the circumstances and considering the aforesaid decisions of this Court, the impugned order deserves to be quashed and set aside and the matter is required to be remanded to the learned Executing Court to raise preliminary issue with respect to limitation and thereafter to decide the same in accordance with law and on merits, at the earliest and within stipulated time as decree, which is sought to be executed is confirmed by this Court and even execution petition is of the year 2002.
8. In view of the above, the present Civil Revision Application succeeds. The impugned order dated 19/09/2011 passed by learned Principal Senior Civil Judge, Rajkot below Exh-18 in Execution Petition No.124 of 2002 is hereby quashed and set aside on the aforesaid ground alone and without expressing anything on merits and solely on the ground that without framing the preliminary issue, learned Executing Court could not have pronounced the decision on the same and the matter is remanded to the learned Trial Court to frame the preliminary issue with respect to limitation within a period of one week from the date of receipt of the present order and thereafter to take appropriate decision on the said preliminary issue in accordance with law and on merits within a period of six weeks from the date of receipt of the present order. All the defences/ contentions, which may be available to the respective parties are kept open, which shall be considered by learned Executing Court in accordance with law and on merits within stipulated time as stated hereinabove. Rule is made absolute to the aforesaid extent. No costs.
Direct service is permitted.
[M.R.SHAH,J] *dipti