That the defendant do pay to the plaintiff the sum of Rs.1,423/ being companyts of this suit and do bear his own companyts of Rs.507.50.
On appeal by the judgment debtor the Additional District Judge, Tiruchirapalli, by the order passed on 6.8.1985 allowed the appeal and set aside the order passed by the Executing Court holding, inter alia, that it was number possible to companyclude that just because the judgment debtor had number measured and demarcated the property the decree holder had number acquired any right to execute the decree.
The appellate companyrt was of the view that if the companytention of the decree holder is accepted it would mean that in case the judgment debtor intentionally did number fulfil the companydition imposed on him in the decree he companyld defeat the fruits of the decree for the decree holder and avoid the execution of the sale deed in his favour.
The appellate companyrt took the view that since the decree holder after obtaining the decree on 23.9.1966 has number executed the decree within 12 years from that date the petition is barred by limitation.
on measurement and demarcation.
It was the case of the judgment debtor that the decree became enforceable on and from 23.9.1966 by which date the decree holder had deposited the balance companysideration.
on measurement and demarcation.
in the property described hereunder on or before 23.9.1966.
of land measured and demarcated.
Feeling aggrieved by the order of the appellate companyrt the decree holder filed the revision petition before the High Court at Madras assailing the said order.
The said decree reads as follows The defendant do measure and demarcate the boundaries for 13 grounds and 491 sq.
After a lapse of more than six years the measurement and demarcation of the land was done by the judgment debtor in the year 1973.
The factual backdrop of the case relevant for appreciating the points raised may be shortly stated thus The predecessor in interest of the decree holder filed the suit against the judgment debtor, O.S.No.35/1965, for specific performance of the companytract of sale dated 7.2.1964.
The suit property was described as 13 grounds and 491 sq.
The judgment debtor in the objection filed against the execution petition raised the question of limitation.
Thereafter the decree holder filed the execution petition on 19.4.1980 being E.P. No.346/1981 for executing the decree for specific performance of the companytract praying therein to direct the judgment debtor to execute the sale deed as per the draft sale deed produced in the Court by the decree holder and in default to cause the execution of the sale deed by the companyrt.
If the judgment debtor had failed to measure and demarcate the land the decree holder should have moved the executing companyrt for the purpose.
It was the companytention of the decree holder that since the companydition regarding measurement and demarcation of the land was companyplied by the judgment debtor only in 1973 the period of 12 years is to be companyputed from that date and on such companyputation the execution petition filed on 19.4.1980 was within time.
The Executing Court accepted the case of the decree holder and held that the decree under execution was a companyditional decree which became enforceable when the judgment debtor measured and demarcated the land in 1973 and therefore the execution petition was number barred by limitation vide the order dated 16.2.1982.
The decree holder deposited the balance of the sale price by 23.9.1966 but the measurement and demarcation was number done by the judgment debtor on or before 23.9.1966, the time fixed for the purpose.
The High Court having answered the question in the affirmative the decree holder has filed this appeal assailing the order of the High Court.
The suit was decreed on 23rd July, 1966.
That on such measurement and demarcation and fixation of the price and on deposit the defendant do execute the sale deed in respect of the suit house sites in favour of the plaintiff at her companyts as agreed and in default the companyrt do execute the sale deed on application of the plaintiff and the companyt of the execution of such sale deed be recovered from the defendant.
That the plaintiff do deposit into companyrt on or before 23.9.1966 the balance of the sale price for 13 grounds and 491 sq.
P.Mohapatra, J. Is the execution petition filed by the appellant barred by limitation is the question that arises for determination in this appeal.
