Lalta Parshad vs Mst. Badami and others

Gurnam Singh, J.—This second appeal against order arises out of execution proceedings. On 11-8-1991 BK. Muni Lal obtained a decree for ejectment and rent against Lalta Parshad. During the pendency of these proceedings Shri Brij Balabh Parshad son of judgment-debtor wrote a letter praying for stay of proceedings under the Patiala Soldiers Litigation Act (Act 11 of 1997 BK.). On receipt of this letter the executing Court passed an order that the proceedings be stayed and the case be consigned to the record room till the return of the applicant. Against this order the decree-holder went in revision to the High Court of the erstwhile Patiala State which was dismissed. On receipt of record from the High Court the executing Court made another order on 9-12-2001 BK. which was virtually the same as the order passed on 2-11-1999 BK.

On 9-12-2006, Mst. Badami respondent, daughter of Muni Lal, decree-holder, applied to the executing Court for being brought on the record in place of her father who had died and for the resumption of the execution proceedings. She alleged that after her father''s death there had been litigation between her and other persons regarding the property of her father and the matter had finally been decided in her favour. She also mentioned that the proceedings in the execution were stayed by the Court vide its order dated 9-12-2001 BK. She, therefore, prayed that the proceedings which were stayed be revived. The judgment-debtor opposed this application mainly on the grounds (1) that the order of the executing Court dated 2-11-99 whereby the proceedings had been stayed was illegal; (2) that the application for revival of the execution proceedings was barred by time; and (3) that the execution application was beyond limitation. The Court framed the following issues:

Is the application for restoration within limitation? On applicant.

Is the executing court''s, order, dated 9-12-2001, wherein the earlier order, dated 2-fl-1999, regarding the stay of the execution proceedings was repeated, against law; and the same cannot be interpreted to the vantage of the applicant? On respondent.

Is the execution proceeding beyond limitation: and as such the present application pertaining to the restoration thereof deserves being rejected? On respondent.

The executing Court found all the issues against the judgment-debtor and ordered the resumption of proceedings from the stage when they were stayed. In appeal by the judgment-debtor the finding of the executing Court was confirmed. The judgment-debtor being dissatisfied filed second appeal in the High Court. The appeal came up for hearing before Teja Singh C.J. who referred it to a Division Bench as it involved questions of general importance on which there was divergence of opinion of the High Courts.

The Learned Counsel for the appellant urges that the application of Mst. Badami for restoration of execution proceedings being barred by time was not competent and was liable to be dismissed. It was the duty of the decree-holder to apply for execution within time after the contingency on account of which proceedings were stayed had ceased to exist. It is not denied by the respondent that she made this application a little more than six years after the proceedings had been stayed by the executing Court by its order dated 2-11-1999. On the other hand the Learned Counsel for the decree-holder contends that it was not incumbent on the decree-holder to take out fresh execution proceedings as the previous application was still pending decision. He, therefore, contends that the question of limitation in this case did not arise.

He further contends that it was in fact the duty of the Court to restore the execution application suo motu independently of any application from either side. Learned Counsel further urges that there is no provision in the CPC requiring the decree-holder under such circumstances either to put in a fresh application or an application for restoration when the previous application was still pending.

In my opinion there is no force in the contention raised by the appellant. The consigning of execution application to the record room does not terminate execution proceedings. In such a case the application is not disposed of on merits. The proceedings are suspended by an act of the Court and without any fault of the decree-holder. In the present case he (D.H.) agitated against the order slaying the proceedings. In fact in such circumstances the decree-holder has a right to ask the Court to resume the execution proceedings which are interrupted by the intervention of the opposite party. Even after the stay order has ceased, to operate it is not obligatory on the decree-holder to make application to set the execution proceedings in motion. In case any such application is made it is not governed by Art. 181, Limitation Act, as such an application for revival of execution proceedings is not subject to any period of limitation. Even otherwise Art. 181 is not attracted as it applies only to applications made as provided by the Civil Procedure Code.

There is no provision in the Code making it obligatory on the decree-holder to present an application for revival of his pending application. Thus the question of limitation for this reason also does not arise and the provisions of Art. 181, Limitation Act, are not attracted. The view of the matter I take is supported by overwhelming authorities. In - Bhan Datta Upadhia and Another Vs. Mt. Tulsa Kuer, it was held:

When execution of decree is stayed by court under O. 21. R. 29, Civil P.C, pending disposal of judgment-debtor''s suit and execution application is thereupon consigned to record room, this does not terminate execution proceedings. When the stay order has ceased to operate it is not incumbent on the decree-holder to make an application to set execution proceedings in motion. If he makes such an application it is not governed by Art. 181, Limitation Act, and cannot be barred even it made more than three years after the disposal of the judgment-debtor''s suit.

The same view was taken by Passey J. (now C.J.) in - ''Gurdial Singh v. Mst. Partapi'', 10 Pat LR 353 (B). The learned Judge stuck to his view in - ''Gaya Parshad v. Sardara Mal, Civil Appeal No. 331 instituted on 15-11-2002, D/- 1-11-2003 (Pepsu) (C). The other authorities which follow the same view are - ''Babulal v. Ramji Das'', AIR 1950 MP 71 (D); AIR 1948 284 (Nagpur) - Ponnuru Satyanarayana Vs. Bolisetti Nagabushanam,

In - Sha Mulchand and Co. Ltd. (In Liquidation) Vs. Jawahar Mills Ltd., while considering Art. 181, Limitation Act, their Lordships observed that:

Article (181) has, in a long series of decisions of most, if not all, of the High Courts, been held to govern only applications under the Code of Civil Procedure. It may be that there may be divergence of opinion even within the same High Court but the preponderating view undoubtedly is that the Article applies only to applications under the Code.

As already observed the Code doss not require the decree-holder to present an application for revival of his execution proceedings stayed by the court. This Article, therefore, is not attracted in the present case.

From the opposite side Mr. Daya Sarup Nehra. counsel for the appellant, relies on the following authorities. Chhattar Singh and Another Vs. Kamal Singh and Others ; Sat Narain Lal Vs. Ganga Jal and Others - Bayya Naiko and Others Vs. Desetti Krupa and Others, and - ''Kanwar Chandra Rajsaran Singh v. Munshi Lal'', AIR 1938 Lah 69 (K). Here it is necessary to refer to the Full Bench authority of the Allahabad High Court reported as Bhan Datta Upadhia and Another Vs. Mt. Tulsa Kuer, in which their Lordships while considering the Full Bench judgment of the previous case referred to above observed at page 154 as follows:

The argument that the executing court should have acted suo motu and listed the execution application for disposal on the removal of the bar to the execution does not appear to have been considered. It has been assumed but never specifically decided by this Court in the past that some Article of the Limitation Act must apply. All applications are not governed by the provisions of Limitation Act. An application to expedite the hearing of an appeal for example is not governed by the provisions of the Limitation Act. An application to set in motion an execution application which has already been made within time and is still pending is in our judgment an application of a similar nature. In the present case, so far as the execution application was concerned, the decree-holders had done everything that was required of them. They had presented their application for execution within time. They had taken all the necessary steps in the execution court.

For the reasons given by the learned Judges I prefer to follow the view reported in the Pull Bench Allahabad case Bhan Datta Upadhia and Another Vs. Mt. Tulsa Kuer, . Apart from this the same view has already been taken by a learned Judge of this High Court. In view of the authority reported in Bhan Datta Upadhia and Another Vs. Mt. Tulsa Kuer, it is unnecessary to consider the judgment reported in Sat Narain Lal Vs. Ganga Jal and Others It should be considered as overruled. The only other authorities relied upon by the Learned Counsel for the appellant had followed the view of the Allahabad High Court reported in Sat Narain Lal Vs. Ganga Jal and Others .and Chhattar Singh and Another Vs. Kamal Singh and Others That view does not hold good in face of the Full Bench authority of the same High Court reported in Bhan Datta Upadhia and Another Vs. Mt. Tulsa Kuer, .

Learned Counsel for the appellant urges that the respondent in her application dated 9-12-2006 mentioned wrong facts for the revival of the execution proceedings. She had mentioned therein that the execution proceedings were stayed on 9-12-2001 and that they were stayed on account of pending litigation between her and the collaterals of her father Muni Lal decree-holder. I do not see how these allegations, assuming them to be false, affect the merits of the case. In fact these allegations are not far from truth. In his order dated 9-12-2001 staying the proceedings the executing court made a reference to the original order dated 2-11-1999 by which he had first stayed the execution proceedings. It is also not denied by the appellant that there was in fact litigation between the applicant and the collaterals of her father. The prayer in the application was, however, for the revival of the execution proceedings. Under the circumstances I do not find any force in the arguments advanced by the Learned Counsel for the appellant.

Mr. Nehra, Learned Counsel for the appellant concedes that the proceedings under the Patiala Soldiers Litigation Act (Act 11 of 1997 BK) could not be stayed on an application of a person who was not a party to the suit. It is no doubt true that that question was finally determined between the parties by the courts of erstwhile Patiala State. One thing, however, is clear that the proceedings were stayed on the application of the judgment-debtor''s son who had nothing to do with those proceedings and they were stayed without any fault on the part of the decree-holder. In fact the decree-holder agitated the matter upto the High Court of erstwhile Patiala State but remained unsuccessful. Now the judgment-debtor wants to take advantage of his own unwarranted act. This he cannot be allowed to do. In Ponnuru Satyanarayana Vs. Bolisetti Nagabushanam, it was held:

Where an execution petition has been closed erroneously by a court either for statistical purposes or under an error and the decree-holder is free from blame, the injured decree-holder has got a right to have that old execution petition revived and proceeded with, from the stage immediately before the error, and a subsequent execution petition filed by him is only to be treated as reminder to the Court to revive the old execution petition irregularly and erroneously closed by it and no question of limitation is involved.

I am in respectful agreement with the view expressed by the learned Judge. Under the circumstances I am of the opinion that the courts below have come to a correct decision in the case.

An objection to the competency of the appeal was taken by the respondent. It is unnecessary to decide this point as we are dismissing the appeal on other grounds.

For the reasons stated above I find no force in this appeal which is dismissed with costs. The parties, through their counsel, are directed to appear before the executing court on 6-11-1954.

Mehar Singh J.

I agree.