- 1 - NC: 2025:KHC-D:7096 WP No. 105293 of 2018 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 29TH DAY OF APRIL 2025 BEFORE THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM WRIT PETITION NO. 105293 OF 2018 (GM-CPC) BETWEEN: 1. SMT. SARASWATI JINNAPPA KHOT SINCE DECEASED BY HER LR’s, REVATI JINAPPA KHOT AFTER MARRIAGE REVATI RAYAGOUDA PATIL, AGE: 27 YEARS, OCC: HOUSEHOLD WORK, R/O. YARANDOLI, TQ: MIRAJ, DIST: SANGLI. 2. PREETI JINAPPA KHOT AFTER MARRIAGE KNOWN AS PREETI SHANTINATH CHUDAPPAGOL, AGE: 26 YEARS, OCC: HOUSOEHOLD WORK, R/O: KAGWAD, TQ: ATHANI, DIST: BELAGAVI. 3. KUMARI. SWETA D/O. JINAPPA KHOT, AGE: 24 YEARS, OCC: HOUSOEHOLD WORK, R/O: KAGWAD, TQ: ATHANI, DIST: BELAGAVI. 4. KUMAR JAYESH S/O. JINAPPA KHOT, AGE: 24 YEARS, R MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.05.02 16:21:15 +0530 - 2 - NC: 2025:KHC-D:7096 WP No. 105293 of 2018 OCC: AGRICULTURE, R/O: KAGWAD, TQ: ATHANI, DIST: BELAGAVI. ...PETITIONERS (BY SRI. SANGRAM S.KULKARNI, ADVOCATE) AND: KUMAR SHRIPAL KHOT AGE: 59 YEARS, OCC: AGRICULTURE, R/O: KAGWAD, TQ: ATHANI, DIST: BELAGAVI. …RESPONDENT (BY SRI. B.S.KAMATE, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI AND QUASH THE IMPUGNED ORDER DATED 17/7/2018 VIDE ANNEXURE-H PASSED BY THE COURT OF PRINCIPAL SENIOR CIVIL JUDGE, ATHANI IN E.P.NO.89/2017 ON IA NO.3 AND ETC. THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM - 3 - NC: 2025:KHC-D:7096 WP No. 105293 of 2018 ORAL ORDER The captioned petition is filed by the judgment debtors assailing the impugned order dated 17.07.2018 passed by the Executing Court in E.P.No.89/2017 on an application filed in I.A.No.3. 2. The facts leading to the case are as under: Respondent filed a suit seeking relief of specific performance based on an agreement dated 25.04.1991 executed by the father of petitioners namely Jinappa Jayapal Khod. The said suit was contested by father of petitioners. The Court decreed the suit filed in O.S.No.30/1995 by holding that present respondent/decree holder has succeeded in proving the agreement. Consequently, the suit of the plaintiff was decreed vide judgment and decree dated 11.07.2002. The father of the present petitioners herein was directed to execute registered sale deed in favour of respondent/decree holder by receiving balance sale consideration of Rs.40,000/-. Based on the decree - 4 - NC: 2025:KHC-D:7096 WP No. 105293 of 2018 rendered by the Court in O.S.No.30/1995, respondent/decree holder filed an execution petition on 31.03.2017. The present petitioners who are the judgment debtors before the Executing Court have filed an application in I.A.No.3 under Section 115 of CPC requesting the Executing Court to dismiss the execution petition as barred by law. The primary contention raised by petitioners before the Executing Court is that the decree in a specific performance suit was rendered on 11.07.2002 and therefore, Article 136 of Limitation Act is applicable to the present case on hand and the decree was enforceable as on 2002 and therefore, execution petition filed on 31.03.2017 is clearly barred by limitation and hence, sought for dismissal of the execution petition. 3. Executing Court, however, over-ruling the objections raised by the present petitioners/judgment debtors referring to the records found that before a decree for specific performance was passed, the judgment debtor No.1 had already filed a suit for partition and separate - 5 - NC: 2025:KHC-D:7096 WP No. 105293 of 2018 possession against her husband and other family members on 08.11.2001 and in that suit, the respondent/decree holder was arrayed as defendant No.2. The said suit filed in O.S.No.711/2011 was dismissed with costs. The petitioners preferred an appeal in R.A.No.15/2006. The same was dismissed on merits on 26.02.2016 thereby affirming the judgment and decree passed in O.S.No.711/2011. 4. Referring to these significant details, Executing Court was of the view that it is only after disposal of the regular appeal in R.A.No.15/2006 dated 26.02.2016, the respondent/decree holder has filed execution petition on 31.03.2017 and therefore, held that execution petition is well within time and consequently, rejected the application. 5. Learned counsel appearing for the judgment debtors reiterating the grounds urged in the writ petition would point out that the decree for specific performance granted in O.S.No.30/1996 was not at all challenged by - 6 - NC: 2025:KHC-D:7096 WP No. 105293 of 2018 the present petitioners and therefore, in terms of Article 136, the decree became enforceable the moment specific performance suit filed in O.S.No.30/1996 was decreed on 11.07.2002. Therefore, he would contend that execution petition filed in 2017 is barred by limitation as per Article 136 of Limitation Act. 6. To buttress his arguments, he has placed reliance on the following judgments: • Nemi Chand vs. State of Rajasthan reported in (2018) 17 SCC 448 • Laxmi Engineering Works vs. P.S.G.Industrial Institute reported in (1995) 3 SCC 583 • Sajja Chimpiraiah vs. Gaddam Venkata Subbaiah & Others reported in 2004 SCC OnLine AP 262 7. Per contra, learned counsel appearing for the respondent/decree holder citing Section 12 of Limitation Act has vehemently argued and contended that the above said section clearly provides for exclusion of period if other proceedings are pending. Therefore, referring to Section - 7 - NC: 2025:KHC-D:7096 WP No. 105293 of 2018 12, he would vehemently argue and contend that petitioners having challenged the agreement by filing a partition suit in O.S.No.711/2001, cannot take benefit by raising a plea of limitation under Article 136 of Limitation Act. 8. This Court has extensively heard the counsel appearing for petitioners/judgment debtors and counsel appearing for respondent/decree holder. This Court have given its anxious consideration to the records. The short point that would arise for consideration in the case on hand is as to “whether the period of limitation prescribed under Article 136 of Limitation Act would come into play on the date the suit for specific performance filed in O.S.No.30/1996 was decreed on 11.07.2002 and thereby the execution petition filed in 2017 is barred under Article 136 of Limitation Act?” - 8 - NC: 2025:KHC-D:7096 WP No. 105293 of 2018 Finding on Point: 9. Before this Court proceeds to delve into the substantive merits of the present case, it is considered essential to set forth certain dates and events which have material bearing on the issues at hand. The respondent/decree holder initiated a suit for specific performance in O.S. No. 30/1996, based on an agreement to sell dated 25.04.1991. This suit culminated in a decree in favour of the respondent on 11.07.2002. However, upon a careful perusal of the records, it becomes evident that even prior to the decree being granted, judgment debtor No.1 - Smt. Saraswathi, wife of Jinappa Khod along with her minor children, had instituted a separate suit for partition in O.S. No. 711/2001. In this partition suit, the petitioners/judgment debtors asserted that the suit property was ancestral in nature, and they specifically contended that the agreement to sell executed by Jinappa Khod, husband of judgment debtor No.1, was not binding upon them. - 9 - NC: 2025:KHC-D:7096 WP No. 105293 of 2018 10. This Court also deems it necessary to refer to the issues formulated by the trial court. The same are extracted, which reads as under: “1) Whether the plaintiffs prove that the suit property is a ancestral property. ? 2) Whether the plaintiffs are entitled for partition and separate possession as prayed by them.? 3) Whether the 2nd defendant proves that he is a bonafidae purchaser.? 4) Whether the 2nd defendant proves that the agreement of sale executed by the 1st defendant binds the plaintiffs.? 5) Whether the 2nd defendant proves that the 1st defendant has executed an agreement of sale for the benefit of his family.? 6) Whether the 2nd defendant proves that in order to defraud him and also to make the agreement of sale in effective, the plaintiff No.1 and the defendant No.1 have got colluded and obtained a decree for maintenance.? 7) Whether the 2nd defendant proves that the suit is barred by limitation.? - 10 - NC: 2025:KHC-D:7096 WP No. 105293 of 2018 8) What decree or order the parties entitled.? ” 11. This court also deems it necessary to refer the dismissal decree passed in O.S No.711/2001. The operative part of decree is extract which as under: “The suit of the plaintiff is dismissed with cost of Rs.500/- The plaintiffs have failed to establish before the court that they are entitled for partition and separate possession of the suit property as prayed by them in the plaint and further they have also failed to establish that the agreement of sale executed by the 1st defendant in favour of the 2nd defendant is not binding on them.” 12. An examination of the issues framed by the Court in the said partition suit, O.S. No. 711/2001, reveals that these issues have a direct and material bearing on the plea of limitation raised by the present petitioners under Article 136 of the Limitation Act, 1963. The issues so - 11 - NC: 2025:KHC-D:7096 WP No. 105293 of 2018 framed cast a substantial burden on the present respondent/decree holder, particularly Issue No.3, which required the respondent to establish his status as a bona fide purchaser. Further, Issue No.4 required the respondent to prove that the agreement to sell executed by defendant No.1 (Jinappa Khod) would bind the plaintiffs (petitioners herein). Issue No.5 was also crucial, as it cast upon the respondent/decree holder the burden of demonstrating that the agreement to sell was executed for the benefit of the family. Additionally, Issue No.6, a core and substantial issue, necessitated the respondent/decree holder to prove that the partition suit itself was instituted with the intention of defeating the decree-holder’s rights under the agreement to sell and that the original judgment debtor No.1 (Smt. Saraswathi) and her husband (executant of the agreement) had collusively obtained a decree for maintenance in order to frustrate the rights of the decree holder. - 12 - NC: 2025:KHC-D:7096 WP No. 105293 of 2018 13. On a careful analysis of Issues 3 to 6, it becomes evident that although the respondent/decree holder had obtained a decree for specific performance in O.S. No. 30/1996, the enforceability of the said decree was clearly contingent upon the adjudication of the rights asserted by the petitioners in the pending partition suit. This Court is of the considered view that the respondent/decree holder could not have proceeded with execution of the decree without first securing a definitive adjudication regarding the binding nature of the agreement to sell and his status as a bona fide purchaser. The record further indicates that it was the present petitioners, by instituting the partition suit and contesting the binding nature of the agreement, who were responsible for the delay in enforcement of the decree. 14. In light of the foregoing, the contention of the present petitioners that the execution petition is barred by limitation under Article 136 of the Limitation Act, 1963, appears wholly misconceived. As is evident from the issues - 13 - NC: 2025:KHC-D:7096 WP No. 105293 of 2018 framed in the partition suit (as discussed supra), substantial questions regarding the validity and enforceability of the agreement to sell were pending adjudication. It is pertinent to note that the issues were ultimately answered against the petitioners, resulting in the dismissal of the partition suit. The Court, while dismissing the partition suit, held that the agreement to sell executed by Jinappa Khod was valid and binding upon the petitioners. It was further held that the respondent/decree holder was a bona fide purchaser, and that the agreement had indeed been executed for the benefit of the family. Issue No.6 was also answered against the petitioners, with the trial Court recording a finding that the maintenance decree obtained in O.S. No. 367/1993 was collusive in nature. 15. A plain reading of Article 136 of the Limitation Act clarifies that the period of limitation for filing an execution petition does not commence merely from the date of passing of the decree, but from the date when the - 14 - NC: 2025:KHC-D:7096 WP No. 105293 of 2018 decree becomes capable of enforcement in law. The enforceability of a decree may, in certain circumstances, be postponed due to subsequent legal proceedings or bona fide disputes regarding its validity. The Hon’ble Apex Court, in a catena of judgments, including Pundlik Jalam Patil (Dead) by Lrs. v. Executive Engineer Jalgaon Medium Project & Anr1. and Lakshmi Engineering Works v. P.S.G. Industrial Institute,2 has consistently held that the limitation period for execution begins from the date when the decree becomes enforceable, not merely from the date it is passed. These principles are squarely applicable to the facts of the present case. 16. In the instant matter, although the decree in O.S. No. 30/1996 was passed on 11.07.2002, the enforceability of the said decree was immediately subjected to serious contest owing to the institution of the partition suit in O.S. No. 711/2001. The petitioners, who are the widow and children of the original judgment 1 [2008] 15 S.C.R. 135 2 [1995] 3 S.C.R. 174 - 15 - NC: 2025:KHC-D:7096 WP No. 105293 of 2018 debtor, explicitly challenged the binding nature of the agreement to sell, thereby creating a substantial cloud over the enforceability of the decree itself. 17. It is only upon the dismissal of the regular appeal filed by the petitioners in R.A. No. 15/2006 which was finally adjudicated on 26.02.2016 that the decree obtained in O.S. No. 30/1996 attained finality and became capable of being enforced in law. In this backdrop, the filing of the execution petition on 31.03.2017 is well within the 12-year limitation period prescribed under Article 136 of the Limitation Act, reckoned from the date of enforceability, i.e., from 26.02.2016. 18. Thus, in view of the facts and circumstances set forth above, this Court is of the clear view that the execution of the decree obtained in O.S. No. 30/1996 was inextricably contingent upon the outcome of the partition suit initiated by the petitioners in O.S. No. 711/2001. Given the direct challenge to the very foundation of the decree through the partition proceedings , a suit instituted - 16 - NC: 2025:KHC-D:7096 WP No. 105293 of 2018 even while the suit for specific performance was pending , the decree could not have been effectively executed until a final adjudication affirming its enforceability was rendered. Consequently, the period of limitation for filing the execution petition can be held to have commenced only upon the dismissal of the appeal in R.A. No. 15/2006. Accordingly, the execution petition filed by the respondent/decree holder is well within time and cannot be dismissed as barred by limitation. Conclusion: 19. In view of the detailed discussion above, it is abundantly clear that the phrase employed in Article 136 of the Limitation Act, 1963 — "when the decree becomes enforceable" , must be interpreted in the context of the particular facts and circumstances of each case. The mere passing of a decree does not automatically set the clock ticking for execution proceedings; rather, it is the point at which the decree becomes legally enforceable, free from - 17 - NC: 2025:KHC-D:7096 WP No. 105293 of 2018 substantial and bona fide challenges, that determines the commencement of the limitation period. 20. In the present case, the enforceability of the decree passed in O.S. No. 30/1996 stood substantially clouded by the institution and pendency of the partition suit in O.S. No. 711/2001, wherein the petitioners themselves , who are none other than the widow and children of the original judgment debtor , directly and vigorously assailed the validity and binding nature of the agreement to sell. They sought a declaration that the said agreement did not bind them, thereby casting a serious legal shadow over the enforceability of the decree for specific performance. 21. It is a well-settled principle that a judgment debtor who has, through his own acts, created obstacles or initiated proceedings that call into question the validity, binding effect, or enforceability of a decree, cannot subsequently be permitted to take advantage of the delay occasioned thereby to defeat the decree-holder’s - 18 - NC: 2025:KHC-D:7096 WP No. 105293 of 2018 legitimate rights by raising a plea of limitation. The law does not permit a party to frustrate a decree by creating disputes over its validity and then, after such disputes are finally resolved against them, raise the bar of limitation against execution. 22. Thus, the limitation period under Article 136 must be reckoned not from the date of mere pronouncement of the decree, but from the date when the decree becomes truly capable of enforcement, i.e., when all serious challenges to its validity have been finally adjudicated. In the present case, that date is 26.02.2016, when the appeal in R.A. No. 15/2006 was dismissed, confirming the binding nature of the agreement to sell and affirming the decree-holder’s rights. 23. Accordingly, the execution petition filed on 31.03.2017 is well within the 12-year period prescribed by law and cannot, by any stretch of imagination, be held barred by limitation. To hold otherwise would be to allow the judgment debtors to benefit from their own - 19 - NC: 2025:KHC-D:7096 WP No. 105293 of 2018 obstructionist conduct a result that the principles of equity, good conscience, and justice cannot countenance. 24. Therefore, this Court firmly concludes that the plea of limitation raised by the petitioners is devoid of merit and deserves to be rejected 25. For the foregoing reasons, this Court is of the view that execution petition is very much maintainable and the period prescribed under Article 136 would commence only after 2016. 26. Writ petition is devoid of merits and accordingly, stands dismissed. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE CA CT:vh