Bombay High Court
Maria Alda Estrelina & Another vs Antonio Pinto & Others on 5 May, 2000
Equivalent citations: 2000(4)BOMCR658, 2000(4)MHLJ96
Author: R.K. Batta
Bench: R.K. Batta
ORDER R.K. Batta, J.
1. A suit for declaration that the suit land belongs to the estate of Santana Afonsos and Maria Adelina Luiza Clara Marques Afonso was filed by Froilano Perpetua Socorro Marques Afonso on 14-6-1966. In this suit, mandatory injunction to remove plantation, fencing and construction done by the respondents in the suit land, was sought with directions to restore the suit land. An objection was raised by the respondents that the suit by Froilano Perpetua Socorro Marques Afonso was not competent. The said Froilano Afonso sought to implead legal heirs of Santana Afonso and his wife Maria Afonso in terms of Article 269 of the Portuguese Civil Procedure Code, read with Articles 356 and 359 of the Portuguese Civil Procedure Code, but the said application was rejected vide order dated 12-3-1970. The said Froilano Afonso thereafter filed an application under Order 1, Rule 10(2) of Code of Civil Procedure for impleading the said heirs which was granted and the said heirs were ordered to be impleaded in the suit. Wakalatnama on behalf of the said legal heirs was filed. After due trial, the suit was decreed and the following order was passed by the Civil Judge, Senior Division, Panaji on 14-6-1996 :
"..... On the grounds set forth, I hold the suit tenable and proved and grant to the plaintiffs the reliefs prayed for by them. The area of 175.5 sq. metres, to which the defendants have right, shall be demarcated in the execution of the judgment; after the demarcation is carried out, the defendants should remove the plantation and other works, made by them outside that area of 175.5 square metres, by replacing the land to its status quo ante. I hold the counter-claim framed by the defendants in the written statement unmaintainable and not proved whereby I discharge the plaintiffs from the same. Court fee and advocate's fee to the tune of Rs. 300/- to be borne by the defendants."
The respondents filed "Appellacao" (Civil Appeal No. 179/76) under the Portuguese Civil Procedure Code for which only Froilano Perpetuo Socorero Afonso was joined as respondent. The said appeal was allowed vide judgment dated 30-7-1977 of the learned District Judge, Panaji, and the impugned judgment dated 14-6-1976 of the Civil Judge, Senior Division was set aside. The said Froilano Afonso filed Second Appeal 32/77 which was dismissed. On 18-3-1993, the applicants filed Execution Application No. 20/93/A for execution of the decree passed in Civil Suit No. 26/66 (old regime) 74/66. The executing Court vide order dated 4-4-1996 dismissed the said execution application which is subject matter of challenge in this revision.
2. Before the executing Court, the respondents objected to the execution, inter alia, on the ground that the application was barred by law of limitation; that the appeal preferred by the respondents was on the grounds which were common of plaintiffs in the said suit; that the decree passed by the trial Court no longer subsists and nothing was left to be executed and that the setting aside of the decree in the appeal preferred against Froilano Afonso ensured to the benefit of the respondents against all the plaintiffs in the said suit. The Civil Judge, Sr. Division, Panaji, in a slip-short order held that the decree-holders had not preferred any further appeal to set aside the order of the learned District Judge, Panaji and as such, no decree survives for the purpose of execution.
3. Learned Advocate Shri Lotlikar argued for the applicants and learned Advocate Shri V.P. Thali argued for the respondents.
4. Learned Advocate for the applicants submitted that the questions which arise for consideration are :
1. Whether after the decree is set aside against one of the plaintiffs, namely Froilano Afonso who alone was made party in the appeal, the decree can be executed by those plaintiffs against whom no appeal was filed?
2. Whether limitation for execution of such decree is 3 years or 12 years under the Indian Limitation Act, or 30 years under the Portuguese Law ?
Elaborating on the first issue, it was urged that recourse to Order XLI, Rule 4 can, in no way, help the respondents and in this connection reliance was placed on the judgment of the Apex Court in Rajeswari Amma and another v. Joseph and another, . On the second issue, it was urged that the suit was filed under the Portuguese Law, the appeal from the decree was filed under the Portuguese Law and the execution is also required to be carried out under the Portuguese Law under which the execution application can be filed till 30 years of the passing of the decree. For this purpose, reliance was placed on Article 535 of the Portuguese Civil Procedure Code.
5. On the other hand, learned Advocate for the respondents urged that the following points arise for determination :
1. Whether in view of Order XLI, Rule 4 read with Order XLI, Rule 33 of the C.P.C. the reversal of the decree by the Appellate Court is binding on the present applicants?
2. Whether the execution application filed by the present applicants is maintainable in view of the fact that the entire decree common to all the plaintiffs was reversed by the first Appellate Court and confirmed by the second Appellate Court?
3. What is the law of limitation applicable to the present execution application ?
4. Whether the execution application is barred by law of limitation ?
In respect of the first point, it was urged that the first appeal was filed by the respondents against the decree which was on the common grounds to all the plaintiffs and, as such, the Order XLI, Rule 4 read with Order XLI, Rule 33 comes into play and even though the applicants were not impleaded as respondents, reversal of the decree is binding upon them. For this purpose, reliance has been placed on the judgment of the Apex Court in Ratan Lal Shah v. Firm Lalan Das Chhadamma Lal and another, and Mahabir Prasad v. Jage Ram and others, A.I.R. 1971 S.C. 741. On the second point, it is urged that once original decree dated 14-6-1976 was common to all the plaintiffs, was reversed by the first Appellate Court, no decree existed for the purpose of execution. On the third and fourth points, it has been urged that by section 5 of the Goa, Daman and Diu Administration Act, 1962, all the laws in force immediately before the appointed day, that is 19-12-1961 were maintained and the Portuguese Civil Code, 1867 was one such law which continued to be in force in Goa, Daman and Diu vide section 5 of the Goa, Daman and Diu Administration Act, 1962. He further urged that by G.D.D. Laws Regulation 11 of 1962 and 2 of 1963, several acts in force in the rest of India, were extended to the Territories of Goa, Daman and Diu, yet the Indian Limitation Act, 1908 was not extended to Goa, Daman and Diu; that instead the Indian Limitation Act, 1963 was brought into force in the whole of India including Goa, Daman and Diu with effect from 1-1-1964; that subsequently, the Indian Civil Procedure Code, 1908 was extended by Goa, Daman and Diu (Extension of the Code of Civil Procedure and the Arbitration Act), 1965 and the same was brought into force in Goa, Daman and Diu with effect from 15-6-1966; likewise Goa, Daman and Diu Civil Courts Act was also extended on the same day i.e. 15-6-1966. It is next contended by learned Advocate for the respondents that it is well settled law that the provisions of limitation are a part of procedure and in fact, in C. Beepathuma and others v. Velasari Shankaranarayana Kadambolithaya and others, A.I.R. 1965 S.C. 242, it is laid down that there is no doubt that law of limitation is a procedural law and the provision existing on the day of the suit apply to it. Therefore, according to him, the Indian Limitation Act, 1963 would apply to execution proceedings subject to the other laws save and to the extent prescribed in section 29 of the Limitation Act, 1963. Learned Advocate for the respondents has, therefore, submitted that the trial Court had rightly held that the application is barred by limitation. I do not find any such finding on the question of limitation by the trial Court in the impugned order and this con-
tention of learned Advocate for the respondents does not get any support from the impugned order. On the hand, the Civil Court had held that once decree had been set aside, other legal heirs or other parties have no ground to challenge the said decree nor to execute the same, reason being that the said is being barred by res judicata. This finding is totally different and not on the question of limitation as urged by learned Advocate for the respondents. According to him, the decision in M/s. Cadar Constructions v. M/s. Tara Tiles, is not applicable since the said decision was based upon cause of action. According to learned Advocate for the respondents, under the Portuguese Civil Procedure Code there was no limitation prescribed for execution and limitation was prescribed only for some suits alone; that Article 535 of the Portuguese Civil Procedure Code is not attracted and the decree has to be executed in terms of Order XXI, Rule 35 C.P.C. to which the provisions of Indian Limitation Act would apply. Therefore, the execution of mandatory injunction beyond 3 years is barred under Article 135 of the Indian Law of Limitation and recovery of possession is barred after 12 years in terms of Article 136 of the Indian Law of Limitation. He further submitted that there is no dispute that the suit was originally under the Portuguese Civil Procedure Code, but in the light of the decision of the Apex Court in Maria Cristina de Souza Soddar and others v. Amria Zurana Pereira Pinto and others, , the suit was subsequently tried under the Indian Civil Procedure Code and the original plaintiff Froilano Afonso had succeeded in the matter of impleadment of other heirs of the estate of said Santana Afonso and Maria Afonso on the basis of Order I, Rule 10 C.P.C. It is urged that the filing of execution is part of procedure and law of limitation being a part of procedure, the execution has, necessarily to be filed under Order XXI, Rule 35 C.P.C. to which limitation Act would apply.
6. In reply, it was urged by learned Advocate for the applicants that the cause of action arose under the Portuguese Law and, as such, the suit could have been filed within 30 years of the cause of action and that the Portuguese Law provides for 30 years period for the purpose of execution of the decree. He relied upon {Justiniano Augusto da P. Barreto, etc. v. Antonio Vicente de Fonseca etc.), A.I.R. 1969 Goa, Daman & Diu 124 and M/s. Cadar Constructions v. M/s. Tara Tiles. (supra).
7. I shall deal with the points raised by learned Advocates for the parties one by one. It may be mentioned here that the respondents had also raised an objection that though the applicants were ordered to be impleaded as parties, the amendment to the cause title was not carried out. There is no merit in this technical objection since after the present applicants and others were ordered to be impleaded as parties, Wakalatnama was filed on behalf of all of them and the suit was contested by them along with Froilano Afonso. Therefore, the objection of not carrying out amendment to the cause title being only technical, it does, in any manner, give advantage to the respondents as claimed by them. It is no doubt true that the respondents had filed Civil Appeal No. 179/66 against Froilano Afonso only and the other plaintiffs were not joined as respondents. The first question to be decided is whether in view of Order XLI, Rule 4, read with Order XLI, Rule 33 C.P.C. the reversal of the decree against Froilano Afonso would be binding on the present applicants, and other plaintiffs who were not joined as respondents and more so, when they did not file any appeal against the order of the learned District Judge and the appeal was filed only by Froilano Afonso which was dismissed. The second point raised is connected to the first point that since the decree was common to all the plaintiffs and it was reversed by the appellate Court, whether in such circumstances the present applicants could maintain execution proceedings. Order XLI, Rule 4 and Order XLI, Rule 33 C.P.C. read as under :
"ORDER XLI
4. One of several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on ground common to all. Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all, the defendants, any one of the plaintiffs, or of the defendants may appeal from the whole decree, and thereupon the appellate Court may reverse or vary the decree in favour of the plaintiffs or defendants, as the case may be.
33. Power of Court of Appeal.--- The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or make and to pass or made such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection (and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees):
(provided that the Appellate Court shall not make any order under section 35-A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order)".
Order XLI, Rule 4 and Order XLI, Rule 33 are enabling provisions which carve out an exception to the general rule to the effect that on an appeal by aggrieved party, the Appellate Court can reverse or vary the decree or order the appeal against only in favour of party appealing. Order XLI, Rule 4 deals with situation where decree appealed from proceeding on any ground common to all the plaintiffs or to all the defendants, but any one of the plaintiffs or of the defendants is allowed to appeal from the whole decree upon which the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or the defendants as the case may be. The jurisdiction under Order XLI, Rule 4 and Order XLI, Rule 33 is discretionary and can be exercised in cases which fall within the scope and ambit of Order XLI, Rule 4 and Order XLI, Rule 33 for good reasons. Order XLI, Rule 33 provides for wide powers to the Appellate Court to make any decree, or to pass any order in the interest of justice. It also provides that such power may be exercised by the Court notwithstanding that the appeal is as to a part only of the decree and it may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection. In other words, this rule would apply only when the Court consciously decides to apply in relation to a particular case.
8. Order XLI, Rule 4 obviously is not attracted since the enabling provision thereunder applies when one of the plaintiffs or one of the defendants appeals from the whole decree and the decree is reversed or varied, in favour of all the plaintiffs or the defendants, as the case may be. In the case under consideration, the appeal was filed by all the defendants, but against only one of the plaintiffs and as such, this rule does not come into play at all. The two rulings quoted by learned Advocate for the respondents do not in any manner help the respondents. In Ratan Lal Shah v. Firm Lalan Das Chhadamma Lal and another (supra), a suit was filed against Mohan Singh Ratan Lal through its partners for a decree for value of goods supplied. Ratan Lal denied liability claimed in its entirety. However, Mohan Singh admitted supply of goods and accepted the liability of one fifth of the amount claimed. The claim was decreed in its entirety against Mohan Singh and Ratan Lal as well as the firm. Ratan Lal had filed appeal and impleaded Mohan Singh as second respondent. It appears that Mohan Singh was not served. The High Court was of the view that since there was a joint decree against Ratan Lal and Mohan Singh in a suit founded on a joint cause of action and the decree against Mohan Singh had become final for want of service, the appeal filed by Ratan Lal was dismissed. But the Apex Court held that in the circumstances, it was essentially a case in which the Court's jurisdiction under Order XLI, Rule 4 C.P.C. could be exercised. This was a case where out of the defendants, one of the defendants had filed an appeal and impleaded other defendant as respondent who could not be served. Order XLI, Rule 4 was directly attracted in this case, but in the case under consideration, all the defendants had filed appeal against only one plaintiffs, namely Friolano Afonso and in such circumstances, Order XLI, Rule 4 would not come into play.
9. In Mahabir Prasad v. Jage Ram and others (supra), the suit was filed by one Mahabir Prasad, his mother Gunwanti Devi and his wife Suroj Devi wherein the defendants claimed to be lessees. The Subordinate Judge decreed the suit. The execution of the decree was resisted by the defendants on the ground that the decree was inexecutable because of the provisions of the Delhi Land Reforms Act, 1954. The Subordinate Judge upheld the contention and dismissed the application for execution. Mahabir Prasad alone appealed against that order and impleaded Gunwanti Devi and Saroj Devi as party respondents. Saroj Devi died in November, 1962 and Mahabir Prasad applied that name of Saroj Devi be struck off from the array of respondents. The High Court dismissed the appeal on the ground that since heirs and legal representatives were not brought on record within the period of limitation, the appeal also abated in its entirety. It is this order which was challenged before the Apex Court. Admittedly, the decree in favour of Mahabir Prasad, Gunwanti Devi and Saroj Devi, was a joint decree. The Apex Court held that the competence of the Appellate Court to pass a decree appropriate to the nature of the dispute in an appeal filed by one of several persons against whom a decree is made on a ground which is common to him and other is not lost merely because of the person who was jointly interested in the claim has been made a party-respondent and on his death his heirs have not been brought on record. In this case as well as in the previous case, referred to in the previous para the appeal was filed by one of the plaintiffs/ decree holders, by joining other plaintiffs/decree holders, as respondents and in such circumstances, it was held that Order XLI, Rule 4 would be attracted and an order passed in favour of one of the appellants would ensure to the benefit of other appellants. Besides, the case under consideration before me is different. Here all the defendants have filed appeal, but only one of the plaintiffs namely Froilano Afonso was joined as respondent and the decree was set aside. Obviously, the decree in favour of other plaintiffs/decree holder could not be disturbed by applying the principle of Order XLI, Rule 4.
10. In so far as Order XLI, Rule 33 is concerned, though there are ample powers with the Appellate Court to pass such orders in the interest of justice, but there is nothing to suggest that in the appellate order in Civil Appeal No. 179/76, the Appellate Court had exercised jurisdiction under Order XLI, Rule 33 C.P.C. The decree obtained by the plaintiffs was set aside only vis-a-vis one of the plaintiffs namely Froilano Afonso was before the Court. Thus, the appeal filed by the respondents was allowed only vis-a-vis Froilano Afonso and unless recourse was had to Order XLI, Rule 33, the setting aside of the impugned decree would not affect in any manner the other plaintiffs who were not joined as parties to the appeal.
11. Learned Advocate for the petitioner has relied upon a judgment of the Apex Court in Rajeshwari Amma and another v. Joseph and another (supra). In that case, Decree Holder Rajeshwari Amma, Sukumara Pillai and Neelamma Pillai had filed execution proceedings which were ordered to be executed. The respondent went in revision, in which only Rajeshwari Amma and Sukumara Pillai were impleaded as respondents, omitting Neelamma Pillai. In other words, order of executing Court directing delivery of possession which was executed and possession taken in favour of three persons was challenged against only two persons. The order in favour of Neelamma Pillai became final. The property involved in the execution was undivided between the decree-holders. The High Court had set aside the order in which only two of the three decree-holders had been joined as respondents. The question before the Apex Court was whether the High Court was right in allowing the revision against the unimpleaded respondents and whether that order also came in aid of the appellants Rajeshwari Amma and another. The Apex Court held since the order of delivery of possession in favour of the decree holders is common and inseparable and since it became final as against Neelamma, the High Court was not right in setting aside the order as against the two respondents, namely the appellants.
12. In the light of the above, it follows that Order XLI, Rule 4, read with order XLI, Rule 33 cannot be called in aid of the respondents in so far as other plaintiffs who were not joined as respondents in Civil Appeal No. 179/ 76 are concerned since the decree obtained by them had attained its finality in so far as the said plaintiffs are concerned for want of any appeal by the respondents. There is thus, no merit in the point raised by the learned Advocate for the respondents. Likewise, there is no merit in the second point raised by learned Advocate for the respondent that on account of the reversal of the decree by the Appellant Court in Civil Appeal No. 179/76, no decree in fact exists. The Appellate Court had set aside the decree only in so far as the plaintiff Froilano Afonso is concerned. The Appellate Court does not show that it had exercised the powers under Order XLI, Rule 33 in so far as the other plaintiffs who are not joined as respondents, in the appeal are concerned. The other plaintiffs are, therefore, entitled to the execution of the decree which had attained finality for want of challenge by the respondents.
13. The third and fourth points raised by learned Advocate for the respondents relate to the question whether Limitation Act, 1963 is applicable to the present proceedings and if answer is in the affirmative, whether the execution is barred by limitation. When Goa, Daman and Diu was liberated on 19-12-1961, the laws which were applicable were Portuguese Laws which included the Portuguese Civil Procedure Code of 1867. By virtue of section 5 of the Goa, Daman and Diu Administration Act, 1962 all laws in force immediately before the appointed day, that is to say, 19-12-1961 were saved. By Goa, Daman & Diu Regulations 11 of 1962 and 2 of 1963, several Acts in force in rest of India were extended to the Territories of Goa, Daman and Diu, the Limitation Act, 1963 was brought into force in the whole of India with effect from 1-1-1964 and it became applicable from that date to Goa, Daman, Diu as well. Subsequently, by Goa, Daman and Diu (Extension of the Code of Civil Procedure) and the Arbitration Act, 1965 was brought into force in the Territories of Goa, Daman and Diu with effect from 15-6-1966. Likewise, Goa, Daman and Diu Civil Courts Act was also extended on the same day i.e. on 15-6-1966. The suit, in question, was filed on 14-6-1966. There is no doubt that the suit was filed under the substantive Portuguese Law and the appeal was also filed as 'Appellacao' under the Portuguese Law. The question to be examined is relating to limitation in relation to the execution proceedings. The suit was decreed in favour of the plaintiffs on 14-6-1976. From the judgment of learned Civil Judge, Sr. Division, it is crystal clear that the suit had been decreed in favour of all the plaintiffs as can be seen from last two paras of the judgment, wherein expression used is "plaintiffs". I have already stated that the absence of the amendment to the title of the suit is merely a technicality since, after the other plaintiffs were ordered to be joined, vakalatnama on their, behalf was filed and the suit was decided on their behalf as well. In the judgment of the Civil Judge, Sr. Division these facts have been incorporated. Therefore when the respondents filed appeal only against Froilano Afonso, they took calculated risk knowingly by not challenging the decree as against other plaintiffs.
14. The contention of learned Advocate Shri Lotlikar is that the limitation prescribed for the purpose of execution is 30 years in accordance with Article 535 of the Portuguese Civil Code. Article 535 of the Portuguese Civil Code deals with negative prescription. Title IV deals with rights which are acquired by mere possession and prescription. Thereunder, Chapter I relates to rights acquired by possession which starts from Article 474 to Article 504. Chapter II deals with the rights acquired by prescription and thereunder section I deals with prescription in general under Articles 505 to 516. Section II, under Chapter II deals with positive prescription and thereunder sub-section I deals with prescription of immovable things and immovable rights under Articles 517 to 531. Sub-section II, under section II from Articles 532 to 534 deals with prescription in case of movables. Section III, under Chapter II, under Articles 535 to 543 deals with acquiring rights by negative prescription. Section IV, under Chapter II, deals under various sub-sections about suspension of prescription, interruption of prescription, counting of period for the purpose of prescription and transitional provisions which are contained in Articles 548 to 566.
15. The provisions contained in Title IV essentially deals with acquisition of rights by mere possession and prescription and are applicable in relation to the suits. These provisions are not applicable at all to the execution proceedings. In fact, it appears that under the Portuguese Law no provision existed regarding the limitation in far as execution is concerned. In so far as provisions of Article 535 of the Portuguese Civil Code vis-a-vis the limitation in suits is concerned, the position is now settled in view of the judgment in Justiniano Auqusto da P. Barreto etc. v. Antonio Vicente de Fonseca etc. (supra), which was affirmed by the Apex Court in Justiniano Auqusto da P. Barreto, etc. v. Antonio Vicente de Fonseca etc. (supra). It has been affirmed by the Apex Court that the body of the provisions of Portuguese Civil Code dealing with limitation of suits and in force in the Union Territory of Goa, Daman and Diu (now a State of Goa) only is "local law" within the meaning of section 29(2) of the Limitation Act, 1963. Consequently, it was held by the Apex Court that the provisions of Portuguese Civil Code dealing with the subject of limitation of suits have to be read into the Limitation Act, 1963 as if the schedule to the Limitation Act is amended mutiatis mutandi.
16. The position in relation to execution proceedings is, however, different, I may at this stage refer to section 29(2) of the Limitation Act, 1963, which is as under :
"29. Savings.---(1) Nothing in this Act shall affect section 25 of the Indian Contract Act, 1872.
(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law."
17. The Apex Court in Mukri Gopalan v. Cheppilat. Puthanpurayil Aboobacker, while dealing with section 29(2) of Limitation Act, 1963 has laid down that in order to invoke the saving provisions contained under section 29(2) of the Limitation Act, 1963, two requirements are required to be satisfied, namely (1) there must be a provision for period of limitation under any special law in connection with any suit, appeal or application, (2) the said prescription of period of limitation under such special or local law should be different from the period prescribed by the schedule to the Limitation Act. It is further pointed out by the Apex Court that if the aforesaid two requirements are satisfied, the consequences contemplated by section 29(2) which automatically follows are : (1) in such a case, section 3 of the Limitation Act would apply as if the period prescribed by special or local law was the period prescribed by law, (2) for determining any period of limitation prescribed by such special or local law for a suit, appeal or application of provisions contained in sections 4 to 24 (inclusive) would apply in so far as and to the extent to which they are not expressly excluded by such special or local law.
18. In the Portuguese Law we do not find any prescription/limitation vis-a-vis execution proceedings and, as such, the first requirement for invoking section 29(2) is not satisfied, the result would be that the provisions of Limitation Act, 1963 would be applicable to the execution proceedings in question. In fact, the applicants have themselves filed execution proceedings under Order XXI, Rule 11 C.P.C. The ruling in M/s. Cadar Constructions v. M/s. Tara Tiles (supra) is, obviously, not applicable to the controversy in question, since the said ruling deals with cause of action arising outside the provisions of Portuguese Law where the provisions of Limitation Act, 1963 apply and consequently, in the said case, the principle of acknowledgement of debts contained in section 19 of Limitation Act, 1963 was pressed into service.
19. The general law is that the law of limitation is a procedural law and the provisions existing on the date of suit apply to it. The Apex Court in M.C. de Souza Sodder v. M.C. Pereira Pinto (supra) has laid down that the forum of appeal and also limitation for it are the matters pertaining to procedural law. In that case, the question which had cropped up before the Apex Court was whether the appeal was barred by limitation. The Addl. Judicial Commissioner, Goa, Daman and Diu had held that the appeal was governed by the Portuguese Code and not by Article 116 of the Limitation Act and since the appeal was filed beyond the period prescribed under the Portuguese Code, the appeal was dismissed. The Apex Court did not decide the question as to whether law of limitation applicable in the Union Territory of Goa, Daman and Diu to the proceedings launched therein prior to and pending at the date of liberation would be governed for the purpose of appeal by Portuguese Code or Article 116 of the Limitation Act 1963, and this question was left open.
20. Be that as it may, in view of the fact that no limitation is prescribed under the Portuguese Civil Code in relation to execution proceedings, the limitation which would apply to execution proceedings, would be the Limitation Act, 1963.
21. The reliefs which were granted in the suit are mandatory injunction and recovery of possession beyond 175 square metres. For enforcement of a decree granting mandatory injunction, the period of limitation prescribed under Article 135 of the Schedule to the Limitation Act, 1963 is three years from the date of decree or where a date is fixed for performance, such date. For execution of any decree (other than a decree granting mandatory injunction) or order of any Civil Court, the period of limitation prescribed under Article 136, is 12 years from the date 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. The suit was decreed in favour of the applicants/decree holders on 14-6-1976 and the application for execution was filed on 18-3-1993 which is much beyond the period of limitation prescribed under Articles 135 and 136 of the Limitation Act, 1963.
22. Accordingly, I hold that the execution initiated by the applicants is barred by limitation, the result is that the revisions fails and the Rule is discharged. In the facts and circumstances, the parties are left to bear their costs.
23. Revision fails.