Yash Pal Sharma vs Ajit Singh and Others

Hemant Gupta, J.—The challenge in the present petition is to the order passed by the learned Executing Court on 19.4.2001, holding that the execution petition is liable to be dismissed, as the petitioner has failed to seek restoration of the earlier execution application, dismissed in default on 17.1.1991.

The plaintiff''s suit for possession of 6 kanal 5 marlas of land, was decreed on 13.11.1981. The first appeal was dismissed on 19.3.1994 and the second appeals by this Court on 24.7.1984. An application for execution of the said judgment and decree was filed on September 26/October 13, 1984. The judgment debtor filed objections but the execution application was dismissed in default on 17.1.1991. The petitioner sought execution of the decree by filing a fresh execution petition on 25.12.1995. The learned trial Court relied upon a judgment reported as Chander Bhan Singh v. III Additional Judge, Gonda and Ors. 1996(1) CCC 44, to hold that the remedy of the petitioner was to seek restoration of his execution application and not to file a fresh execution petition. Thus, the execution was dismissed.

The question which arises for consideration in this petition whether execution application is maintainable in the circumstances though it is within the period of limitation contemplated under Article 136 of the Limitation Act'' or the remedy with the petitioner was to seek restoration of the execution application dismissed in default.

Learned Counsel appearing for the petitioner has relied upon Shivashankar Prasad Shah and Others Vs. Baikunth Nath Singh and Others, , Ajit Kaur v. Mandir Jhok Hari Har and Ors. (1988)119 P.L.R. 636 and State of Punjab v. Tara Chand 1989(1) RLR 37, to contend that the provisions of the CPC do not bar the filing of successive execution application within the period of limitation and the order of dismissal of default does not bar the filing of the fresh execution application.

On the other hard, learned Counsel for the respondents relies upon a Supreme Court judgment reported as Damodaran Pillai and Others Vs. South Indian Bank Ltd., to contend that the application for restoration of the execution application could be filed only within 30 days and that the Court cannot condone delay in exercise of inherent powers as Section 5 of the Limitation Act, 1963 is not applicable in the proceedings arising Under Order 21 of the C.P.C.

In Shivshankar Prasad''s case (supra), it has been held by the Hon''ble Supreme Court that an order vide which the execution was dismissed in default is not a final decision of the Court after hearing the parties, and therefore, does not operate as res judicata. It was held to the following effect:

The Courts in India have generally taken the view that an execution petition which has been dismissed for the default of the decree-holder though by the time that petition came to be dismissed, the judgment-debtor had resisted the execution on one or more grounds, does not bar the further execution of the decree in pursuance of fresh execution petitions filed in accordance with law - see Lakshmibai Amant Kondkar v. Ravji Bhikaji Kondkar 31 BomL.R. 400 : AIR 1929 Bom. 217 . Even the dismissal for default of objections raised u/s 47, CPC does not operate as resjudicata when the same objections are raised again in the course of the execution - see Bahir Das Pal and Another Vs. Girish Chandra Pal, ; Bhagwati Prasad Sah Vs. Radha Kishun Sah and Others, ; Jethmal and Others Vs. Mst. Sakina, ; Bishwanath Kundu Vs. Sm. Subala Dassi, , We do not think that the decision in Ram Narain Singh and Others Vs. Basudeo Singh and Another, on which the learned Counsel for the appellant placed great deal of reliance is correctly decided. Hence we agree with the High Court that the plea of res judicata advanced by the appellant is unsustainable.

The judgment referred to by the learned Counsel for the respondents is not applicable to the facts of the present case, The said judgment deals with the applicability of the Limitation Act, in view of the specific period of limitation provided in Rules 105 and 106 of Order 21 of the C.P.C. In the present case, the execution application was filed within the period of 12 years. A fact not found in the reported judgment, therefore, the principle laid down in the said judgment cannot be made applicable in the present case. The judgment of Allahabad High Court relied upon by the learned trial Court has made applicable the provisions of Order 9 Rule 9 and Order 9 Rule 13 of the C.P.C. to the execution proceedings. The rights between the parties stand crystallised with the passing of the decree, The bar created Under Order 9 Rule 9, cannot be made applicable as it precludes the plaintiffs from bringing a fresh suit. The provisions of Order 9 Rule 9 C.P.C. cannot be extended in respect of execution of a decree when the rights stand settled and only execution of a decree is required to be made. This Court in Ajit Kaur''s case and in Tara Chand''s case has upheld the rights of the decree holder to file second execution application even after the decision of the first application within the period of limitation.

Consequently, the order passed by the Executing Court dated 19.4.2001, is set aside. As the execution application is found to be within limitation and maintainable, the Executing Court is directed to proceed with the execution expeditiously, in accordance with law.

The parties to appear before the learned Executing Court on 28.7.2006 for further proceedings in accordance with law.