VITHABAI G GHODAKE Vs. UNITED WESTERN BANK LTD

JUDGEMENT

(1.) THIS revision is by the judgment-debtor being aggrieved by the order passed in Misc. Case No. 40/2000 by the learned Civil Judge (Sr. Dn.), Hubli, dated 14-6-2001 restoring the Execution Case No. 229/88.

(2.) THE brief facts of the case are as follows : the United Western Bank Ltd. , obtained a decree against the judgment-debtor for Rs. 1,52,864/- in O. S. No. 13/1982. The said decree became final between the parties. The decree-holders took out execution for recovery of the amount in Ex. Case No. 229/88. The judgment-debtor dragged on the proceedings commencing from 1988. After all the formalities, the execution proceedings stood posted to 5-8-2000 for filing of the verified statement. On 5-8-2000, the execution petition came to be dismissed for non-compliance of Order 21, Rule 66 (3), CPC. The decree-holder-Bank immediately filed a Miscellaneous Petition under Order 21, Rule 106 r/w. 151, CPC for restoration of Ex. Case No. 229/88. The petition came to be registered as Misc. No. 40/2000. The learned Judge of the Executing Court by its order dated 14-6-2001 allowed Misc. No. 40/2000 by restoring the execution proceedings in Ex. Case No. 229/88. It is insofar as restoring of the execution case, the judgment-debtors have come up with this revision.

(3.) LEARNED Counsel Sri. M. H. Datar for the petitioners contended that when once the Execution Case No. 229/88 is dismissed, the restoration is bad in law, as the same is barred under Article 136 of the Limitation Act. Secondly contended that there is no finding by the learned Judge insofar as valid service of notice on respondents 1 and 2. When there is no finding regarding valid service of notice on them, the restoration is also bad. Thirdly contended that the petition under Order 21, Rule 106, CPC is not maintainable as Rule 105, CPC provides only for hearing of applications. The restoration of the Execution Case amounts to fresh proceedings. He has further contended that on the date of hearing, the Execution Case was posted for filing of verified statement and as the same was not complied with, the Execution Case was dismissed. Therefore, the application filed under Order 21, Rule 106, CPC is not at all maintainable. The order sheet dated 16-6-2000 in the execution case shows 'objections were not filed for sale notice'. Therefore, the case was adjourned to 1-7-2000 for filing of the verified statement. It is on 5-8-2000, the execution case was dismissed as the decree-holders and their advocate were absent. Therefore, the restoration of the execution case by invoking the provisions of Section 21, Rule 106, CPC is not sustainable. Accordingly, prayed to allow the revision by setting aside the order passed in Misc. No. 40/2000. In support of his contentions, the learned Counsel relied on the decisions reported in AIR 1945 Mys 154 (FB) (Salvapanthula Seshagiri Rao v. Rebala Subbarami Reddy); AIR 1947 Mad 385 (Nataraja Pillai v. U. Narayanaswami Iyer); AIR 1954 Travancore-Cochin 1 (Krishna Panicker v. Kunchu); AIR 1969 AP 250 (Katragadda Ramayya v. Kolli Nageswara Rao); and 1971 (1) KLJ 4 (sic) (State Bank of Travancore v. M. Ramu ).