Munikrishna Achari vs Kanniappa @ Raja Gounder

K. Govindarajan, J.—The petitioner had obtained a decree in O.S.No. 781 of 1981 on the file of the District Munsif Court, Gudiyatham for

recovery of amount from the respondent. The said decree was passed on 28.11.1981. The petitioner filed E.P.No.296 of 1993 to execute the

said decree. On 24.6.1993, since the respondents in the execution petition were not present inspite of notice, they are set ex parte. Thereafter, on

4.11.1993, petitioner was directed to file sale papers of the execution petition and the executing court the matter to 2.12.1993. When the case

was called on 2.12.1993, since the sale papers were not filed, executing Court has rejected the execution petition. To restore the said execution

petition, as it happens to be the last execution petition to execute the decree, the petitioner has filed application u/s 151. Civil Procedure Code.

The lower Court rejected the same on the ground that the petition u/s 151 CPC is not maintainable and the petitioner should file application only

under Order 21 Rule 106 C.P.C. Aggrieved against the same, the petitioner has filed the above revision.

With respect to the objection that has been raised by the lower Court regarding maintainability of the petition, it is already settled by this Court

in the judgment reported in Veera Boyan Vs. Ponnusamy Gounder and Others, . While referring to the judgments of various High Courts and also

the judgment of this Court reported in Ganapathy v. Murugesan Chetty, 1989 (2) L.W. 38, the learned Judge held as follows:

As already noticed by me, the hearing was over on 18.12.1991 itself on which date the court passed an order for executing the sale deed.

Therefore, on and from that date there was no hearing in that case and the right of the parties in the execution petition was decided on that date

itself. Therefore, on 10.3.1992 the E.P. was not called for any hearing, If that is the factual situation, the order challenged in this revision holding

that the limitation prescribed under Order 21, Rule 106 of the CPC will apply cannot be sustained. Accordingly, the order under challenge is set

aside and the revision is allowed.

In view of the above, after setting the respondent ex parte in the execution petition, question of hearing further in execution petition will not arise.

So, the order passed by the executing Court on 2.12.1993 cannot be said to be passed under Order 21 Rule 105 C.P.C. so as to enable the

lower Court to direct the petitioner to file application under Order 21 Rule 106 C.P.C. In view of the above, the petitioner is correct in filing an

application u/s 151 C.P.C.

As stated by the learned counsel appearing for the petitioner, execution petition is a last one and if it is not restored so as to enable the petitioner

to file sale papers, he will lose the benefits got under the valid decree. The dismissal of execution petition is only on technical ground. Hence, the

lower Court is not correct in rejecting the petitioner''s application on the ground that the petitioner cannot maintain the petition. Hence, the order of

the lower Court is set aside and E.A.No.71 of 1994 on the file of the District Munsif Court, Gudiyatham is ordered and the executing Court is

directed to proceed with the execution petition in accordance with the law.

With the above observations, the revision is allowed. No Costs.