Avtar Singh and Others vs Sat Pal and Others

Alok Singh, J.—Decree-holders/petitioners are assailing order dated 2.12.2009 passed by Executing Court/Additional Civil Judge (Senior

Division), Gurdaspur, thereby rejecting execution application filed by the decreeholders being time-barred.

The brief facts of the present case are that plaintiffs/decree-holders have filed suit for possession being suit No. 124 of 1988, in the Court of

Sub Judge, 1st Class, Gurdaspur. Suit was decreed ex parte in favour of the plaintiffs/decree-holders/petitioners vide judgment and decree dated

27.7.1990. Plaintiffs/decree-holders moved an execution application on 16.4.1991 before the Executing Court, which was registered as execution

case No. 47 of 1991. After the filing of the execution application, defendants/respondents moved an application under Order 9 Rule 13 CPC for

setting aside ex parte judgment and decree dated 27.7.1990. During the pendency of the application under Order 9 Rule 13 CPC, learned

Executing Court vide order dated 14.6.1993 directed to consign the execution application till the disposal of application under Order 9 Rule 13

CPC. Ultimately, application under Order 9 Rule 13 CPC moved by defendants/respondents came to be dismissed vide order dated 20.3.1997.

Thereafter, decree-holders/petitioners moved an application on 12.4.2005 before the Executing Court, requesting the Executing Court for revival

of the execution, which was directed to be consigned vide order dated 14.6.1997. Learned Executing Court vide impugned order dated

2.12.2009 dismissed the application for execution as well as revival application, observing therein that decree for possession was passed on

27.7.1990 and revival application is moved on 12.4.2005, hence it is barred by Article 136 of the Limitation Act since decree for possession can

be executed within 12 years and not beyond that.

I have heard learned Counsel for the parties and perused the record. Undisputedly, suit No. 124 of 1988 filed by plaintiffs/petitioners was

decreed ex parte against defendants/respondents vide judgment and decree dated 27.7.1990. Undisputedly, execution to recover possession

pursuant to the judgment and decree dated 27.7.1990 was filed by the decree-holders on 16.4.1991, which was registered as execution No. 47

of 1991. Undisputedly, during the pendency of the execution dated 16.4.1991, an application under Order 9 Rule 13 CPC was moved by the

defendants before the learned trial Court on 7.1.1992. Undisputedly, execution filed by the decree-holders being execution case No. 47 of 1991

was directed to be consigned during the pendency of the application under Order 9 Rule 13 CPC vide order dated 14.6.1993. Undisputedly,

application under Order 9 Rule 13 CPC moved by the defendants was ultimately dismissed vide order dated 20.3.1997. Undisputedly, thereafter

defendants have filed another suit being No. 47 of 2005 on 22.2.2005 seeking declaration and permanent prohibitory injunction against the

petitioners herein. Undisputedly, petitioners/decree-holders meanwhile filed revival application dated 12.4.2005 in the execution case No. 47 of

1991 seeking revival of execution stating that application under Order 9 Rule 13 CPC was dismissed by order dated 20.3.1997, hence decree-

holders are entitled to possession as directed by the original judgment and decree dated 27.7.1990. Undisputedly, second suit filed by the

judgment-debtors/respondents came to be dismissed vide judgment dated 25.7.2008 and appeal therefrom was dismissed vide judgment dated

9.9.2008. Learned Executing Court has dismissed the revival application by observing that revival application was moved after more than 15 years

from the date of original decree dated 27.7.1990, hence same is barred by limitation since execution seeking possession ought to have been

moved within 12 years from the date of decree.

Order 21 Rule 29 CPC reads as under: -

Stay of execution pending suit between decree-holder and judgment-debtor. - Where a suit is pending in any Court against the holder of a

decree of such Court or of a decree which is being executed by such Court on the part of the person against whom the decree was passed, the

Court may, on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided:

Provided that if the decree is one for payment of money, the Court shall, if it grants stay without requiring security, record its reasons for so doing.

From the perusal of Order 21 Rule 29 CPC, I am of the opinion that Executing Court is competent to stay the execution proceedings pending

disposal in suit against decree-holder or against decree sought to be executed. In the present case, execution was directed to be consigned during

the pendency of the application under Order 9 Rule 13 CPC vide order dated 14.6.1993. Now, question comes as to whether proceedings under

Order 9 Rule 13 CPC can be termed as suit since Executing Court can stay the execution pending disposal the suit.

Section 141 CPC reads as under: -

Miscellaneous proceedings. - The procedure provided in this Code in regard to suit shall be followed, as far as it can be made applicable, in

all proceedings in any Court of civil jurisdiction.

Explanation. - In this section, the expression ""proceedings"" includes proceedings under Order IX, but does not include any proceeding under

Article 226 of the Constitution.

In the opinion of this Court, application under Order 9 falls within the definition of proceeding as defined in the explanation and any proceeding

before the Civil Court shall be decided as per the provisions prescribed to decide the suit. Since application under Order 9 Rule 13 CPC is tried

and decided after taking evidence as per the provisions of Code to decide the suit, hence application under Order 9 Rule 13 CPC can be said to

be a suit enabling the Executing Court to stay the execution proceedings pending disposal. Since execution was directed to be consigned vide

judgment dated 14.6.1993 during the pendency of the application under order 9 Rule 13 CPC, hence revival of execution should have not been

denied on the ground that execution for recovery of possession could have been moved within 12 years from the date of decree. Admittedly,

execution was moved way back on 16.4.1991 within one year from the date of judgment and decree dated 27.7.1990. Since, execution petition

remained consigned under the order of the Executing Court dated 14.6.1993, hence revival of the execution will not amount to filing the new

execution application, which could be said to be barred by limitation. Order impugned cannot be sustained in the eye of law.

Petition is allowed. Impugned order is set aside. Parties are directed to appear before the learned Executing Court on 30.11.2010 for further

direction. Learned Executing Court shall proceed with the execution in accordance with law.