SUSHEELAMMA Vs. MUNIYAPPA

JUDGEMENT

(1.) The plaintiff in O.S.No.6458/1991 who obtained the decree in the said suit has filed the Execution Petition No.882/1995 being the decree holder, butthe said execution petition was dismissed for default on 7/10/2003 and thereafter, filed Misc.Petition.No.323/2010 under Order 21 Rule 106 of CPC r/w Order 9 Rule 9 of CPC praying to set aside the order of dismissal of execution petition for default, but the said Misc.Petition.No.323/2010 came to be dismissed on the reason that there is delay in filing the said petition. Thus, against the said order, the present appeal is filed.

(2.) The appellant herein has filed the suit in OS.No.6458/1991 for mandatory injunction against the respondent herein who is the defendant in the said suit for removal of shed constructed on the property belonging to the plaintiff and also for permanent injunction. The said suit in O.S.No.6458/1991 was decreed on 4/8/1995. Thereafter, the plaintiff filed the Execution Petition No.882/1995, but it was dismissed for default on 7/10/2003. Thereafter, the petitioner/appellant herein filed Misc.Petition.No.323/2010 under Order 21 Rule 106 of CPC read with Order 9 Rule 9 of CPC praying to set aside the dismissal of petition for default. The Executing Court has dismissed the said petition as it is barred by limitation. Therefore, being aggrieved by this, the plaintiff/decree holder has preferred the present appeal.

(3.) Learned counsel for the appellant submitted that the plaintiff being an old age woman is having mentally retarded son. Furthermore, the plaintiff's daughter who is the appellant/plaintiff was residing in Dubai met with an accident and therefore, when the plaintiff had suffered such severe setback in life could not approach the Court in time. Therefore, due to such inevitability, there may be delay in filing the Misc. Petition before the Executing Court. Instead of considering the same, in a magnanimous way approached the technicality of law in dismissing the petition rendering virtually the decree to become in nullity, so the plaintiff is not able to enjoy the fruit of decree. Therefore, prays to allow the appeal and set aside the order passed in Misc. Petition by restoring the execution petition before the Executing Court.