IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No. 332 of 2008
Tulsidas Patel & others ... ... Petitioners
Versus
Md. Shafique & Another... ... ... Respondents
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CORAM: THE HON'BLE MR. JUSTICE M. Y. EQBAL
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For the Petitioner: M/s. V.Shivnath,A.N.Gupta, S.Topno
For the Respondents: Mr. Rajesh Kumar,M.K.Sinha ,D.kr.
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Reserved on: 12.11.2008 Pronounced on: 20th November, 2008
M. Y. Eqbal, J. In the instant application filed under Article 227 of the
Constitution of India the sole question that falls for consideration is
as to whether the executing Court was justified in rejecting the
objection filed by the petitioner-judgment debtor under Section 47
of the Code of Civil Procedure holding that execution case is not
barred by limitation.
2. The undisputed facts are that the plaintiff-respondent filed
Title (Eviction) Suit No.58/85 and obtained ex parte decree on
5.12.1987
. The contesting defendant after having come to know
about the ex parte decree filed application under Order IX, Rule 13
Code of Civil Procedure, 1908 for setting aside ex parte decree
which was registered as Misc.Case No.6/88. During the pendency
of the miscellaneous case, since there was no stay of the execution
of the decree, respondent-decree holder filed Execution Case
No.10/89 for obtaining delivery of possession. Since the decree
holder did not take any step in the said execution proceeding, the
same was dismissed on 26.9.1991 for default. The decree holder
however, did not take any step for restoration of aforementioned
Execution Case No.10/89. After the expiry of 12 years from the date
of decree and also from the date of dismissal of the earlier
execution case filed a fresh execution case in January,2005 which
was registered as Execution Case No.2/2005. In the meantime the
judgment debtor died and on service of notice to the heirs of the
judgment debtors namely, petitioners, they appeared and filed
objection under Section 47 Code of Civil Procedure, 1908 for
dismissal of the execution case as it is barred by limitation. The
respondent-decree holder filed rejoinder stating, inter alia, that
after the miscellaneous case for setting aside ex parte decree was
2 W.P. (C) No.332 of 2008
rejected, a fresh execution case was filed, which is not barred by
limitation. Learned Munsif ,after hearing the parties, rejected the
objection filed by the petitioner-judgment debtor under Section 47
of the Act and held that the execution case is not barred by
limitation.
3. I have heard Mr. V. Shivnath, learned senior counsel
appearing for the petitioners and Mr. Rajesh Kumar, learned
counsel appearing for the respondents.
4. Mr. V. Shivnath, in course of argument, relied upon the
decision of this Court in the case of Bharat Ram Mahato and others
vs. Ramesh Chandra Sharma and others (2007)1 JLJR 245, where
the decisions of the Supreme Court have been followed. Mr. Rajesh
Kumar, on the other hand, submitted that since the miscellaneous
case filed under Order IX Rule 13 was pending, the decree holder
did not proceed with the earlier execution case which resulted in
dismissal for default. According to the learned counsel after the
miscellaneous case for setting aside ex parte decree was finally
rejected, the fresh execution case was filed, which is not barred by
limitation. I am unable to accept the submission made by Mr.
Rajesh Kumar. In the case of Bharat Ram Mahato (supra) a Bench
of this Court, after following the principles laid down by Supreme
Court in the case of W.B. Essential Commodities Supply
Corporation vs. Swadesh Agro Farming and Storage Pvt. Ltd. and
another (1998)8 SCC 315 and held :
“As noticed above, in the instant case, judgment and decree
passed by the trial Court on 11.3.1977 was finally
confirmed by the High Court on 3.4.1989 in Second Appeal
no.245 of 1979. The original decree holder filed Execution
Case being Execution Case No.23 of 1993 within 12 years
from the date of the decree. The said execution case was
ultimately dismissed for non-prosecution on 22.9.2000.
Thereafter, the legal representatives of the decree holder
filed a fresh execution petition on 17.4.2003, which was
registered as Execution Case No. 5 of 2003. Admittedly,
the second Execution Case No. 5 of 2003 filed by the legal
representatives of the decree holder was beyond the period
of 12 years from 3.4.1989 when the judgment and decree
attained its finality. After the Execution Case was
dismissed for non- prosecution, the remedy available to the
decree holder or his representatives was to file an
application for restoration of the Execution Case as
provided under Order 21, Rule 106 of the Code of Civil
Procedure. The period of limitation for filing an application
for restoration of Execution Case is 30 days from the date
3 W.P. (C) No.332 of 2008when the Execution Case is dismissed for default.
Admittedly the second Execution Case was filed beyond the
period of 12 years from the date of the decree and no
application for restoration of the earlier execution case was
filed within 30 days from the date of dismissal as
contemplated under Rule 106 of Order 21 of the Code of
Civil Procedure.”
5. In the instant case, as noticed above, the respondent-
decree holder obtained an ex parte decree of eviction in 1987 and
Execution Case No.10 of 1989 was levied, which was eventually
dismissed on 26.9.1991 for non-prosecution. Neither the decree
holder filed restoration application for restoration of earlier
Execution Case No.10 of 1989 nor even filed fresh execution,
although not maintainable, within 12 years from the date of
dismissal of the earlier execution case. In that view of the matter,
fresh execution case filed by the Decree-Holder in 2005 was not at
all maintainable as the same was barred by limitation. Learned
Munsif , therefore, rightly passed the impugned order, which needs
no interference at all by this Court.
6. For the reasons aforesaid, this writ application is
dismissed.
(M. Y. Eqbal, J)
Raman/ A.F.R.