KARUPPA GOUNDER Vs. PONGIYANNA GOUNDER

JUDGEMENT

(1.) This revision is by the decree holder in O.S.No. 88 of 2002 challenging the order dismissing his application for restoration of an execution petition that was dismissed for default on 28.03.2014.

(2.) The petitioner had sued for reliefs of declaration that the width of cart track at 12 feet, mandatory injunction directing the defendants 5 to 7 to restore the cart track and for permanent injunction restraining the defendants 1 to 4 and others from reducing the width of the cart track. The said decree dated 12.04.2008 was put in execution in E.P.No. 6 of 2010. A Commissioner was appointed by the Trial Court to carry out the exercise and the execution petition was adjourned for report of the Commissioner on several occasions. Since the Commissioner did not file his report, the Executing Court dismissed the execution petition for default on 28.03.2014. The petitioner filed an application in E.A.No. 88 of 2017 on 18.09.2015 seeking restoration of the execution petition under Section 151 of C.P.C.

(3.) This was opposed by the respondents / judgment debtors contending that the application under Section 151 of C.P.C is not maintainable. The order passed by the Executing court being one under Order 21 Rule 105(2) of C.P.C and application for restoration has to be made under Order 21 Rule 106(1) of C.P.C within 30 days from the date of the order as provided under Order 21 Rule 106(3) of C.P.C. It was also pointed out that Section 5 of the Limitation Act would not apply to an application under Order 21 Rule 106 of C.P.C. Therefore, the application for restoration of the execution petition itself is not maintainable. The Trial Court accepted the defence and also concluded that it is open to the decree holder to file a fresh EP as the same would be within the time allowed under law. On the above conclusions, the executing Court dismissed the petition. Aggrieved, the decree holder has come up with this revision.