civil suit for declaration
Raghav Sood
(Querist) 10 January 2010
This query is : Resolved
to all Ld friends my query is that i am dealing with a case
facts are: -
A in the year 1970 has filed a suit for reedemption against B
consequently the suit was decrred and the the Court in the year 1974 has passed preliminary decree of possession in favour of A and thereafter A has deposited the mortage money and the decree was made final on 20-6-1974. However the A has not applied for execution of final decree nor he got the possession as he has not applied for the same
The revenue record shows the B as in possession as morgage uptill date as wel B is in possession
thereafter the LR'S of A in the year 1996 has filed suit for declaration that they are owners in possession of the land in question and the entries in the revenue record are wrong illegal void in the Civil Court on the basis of that decree (1974)and B resisted the suit being not maintable as the it is hopelessly time barred secondly on the ground that A wanst to enforce the decree via suit which is not maintainble On the other hand it is also correct that limitation only bars the remedy but doesnt estingushes the right its only in ART 65 of Limitation but the previous counsel has not taken the plea of adverse possession
Can LR's A get the declaration from Civil Court
Waiting for esteemed suggestions of experts
Raj Kumar Makkad
(Expert) 11 January 2010
Definitely the suit is not maintainable in the given case but the decree can be got executed separately as rights of the parties cannot be taken away by way of technicalities, as opined by Hon'ble apex Court in the almost a similar case.
Raghav Sood
(Querist) 11 January 2010
Makkad ji wat abt delay in bringing suit cant he be non suit and
Raghav Sood
(Querist) 11 January 2010
and regarding execution of decree time frame is 12 yrs as per limitation
any case law relating to the facts will be highly appreciated
