MUNIKRISHNA ACHARI Vs. KANNIAPPA ALIAS RAJA GOUNDER

JUDGEMENT

(1.) THE petitioner had obtained a decree in O. S. No 781 of 1981 on the file of the District Munsif Court, gudiyatham for recovery of amount from the respondent. THE said decree was passed on 28. 11. 1981. THE petitioner filed E. P. No. 296 of 1993 to execute the said decree. On 24. 6. 1993, since the respondents in the execution petition were not present inspite of notice, they are set exparte. THEreafter, on 4. 11. 1993, petitioner was directed to file sale papers of the execution petition and the executing court the matter to 2. 12. 1993. When the case was called on 2. 12. 1993, since the sale papers were not filed, executing Court has rejected the execution petition. To restore the said execution petition, as it happens to be the last execution petition to execute the decree, the petitioner has filed application under Section 151. Civil Procedure Code. THE lower Court rejected the same on the ground that the petition under Section 151 CPC is not maintainable and the petitioner should file application only under Order 21 Rule 106 C. P. C. Aggrieved against the same, the petitioner has filed the above revision.

(2.) WITH respect to the objection that has been raised by the lower Court regarding maintainability of the petition, it is already settled by this Court in the judgment reported in Veera Boyan v. Ponnusamy gounder and 3 others, 1998 (3) L. W. 405. While referring to the judgments of various High Courts and also the judgment of this Court reported in Ganapathy v. Murugesan Chetty, 1989 (2) L. W. 38, the learned Judge held as follows: "as already noticed by me, the hearing was over on 18. 12. 1991 itself on which date the court passed an order for executing the sale deed. Therefore, on and from that date there was no hearing in that case and the right of the parties in the execution petition was decided on that date itself. Therefore, on 10. 3. 1992 the E. P. was not called for any hearing. If that is the factual situation, the order challenged in this revision holding that the limitation prescribed under Order 21, Rule 106 of the CPC will apply cannot be sustained. Accordingly, the order under challenge is set aside and the revision is allowed. "