RAM KUMAR MAURYA Vs. ADDITIONAL DISTRICT JUDGE LUCKNOW

JUDGEMENT

(1.) Heard Mr. Akhilesh Kalra, learned counsel for the petitioner and Mr. Ashok Sinha, learned counsel for opposite party No. 3. The petitioner is aggrieved with order dated 23.7.2008 passed by opposite party No. 2, i.e. Civil Judge (Junior Division) South, Lucknow, whereby the petitioner's application moved under Section 47 of Code of Civil Procedure has been rejected as also the order dated 15.10.2009 passed by opposite party No.1, i.e., Additional District Judge, Room No. 14, Lucknow in Civil Revision No. 172/2008, whereby the order passed by the Court below has been upheld.

(2.) Briefly the facts of the case are that opposite party No. 3 moved an application for execution of decree on 6th September, 2002 in Regular Suit No. 227/2000, which was dismissed for want of prosecution on 4th April, 2005. He moved an application for recall of order dated 4th April, 2005 which was also dismissed for want of prosecution on 7th April, 2007. Thereafter, he moved second application for execution of decree on 8th January, 2008, against which petitioner filed an objection under Section 47 of Code of Civil Procedure on 16th April, 2008. By means of order dated 23.7.2008, the petitioner's objection has been rejected and second application for execution of decree moved by opposite party No, 3 has been allowed. The learned counsel for the petitioner by inviting the attention of this Court towards the relief sought in the Regular Suit submitted that it has been taken into consideration by the trial Court that it was a suit for mandatory injunction to remove illegal construction after vacating the plot in dispute to handover the possession to the plaintiff. The trial Court passed the judgment and decree in the suit in the following manner: <IMG>JUDGEMENT_540_ADJ4_2010Image1.jpg</IMG>

(3.) For execution of decree granting mandatory injunction, the period of limitation is provided as three years under Article 135 of Schedule to the Limitation Act, 1963. In the light of the aforesaid provisions, he submits that the second application for execution of decree moved by the opposite party No. 3 dated 8.1.2008 was highly time-barred, therefore, after the limitation provided under the said Act, the decree cannot be executed. He further submitted that Rule 105(2) of Order XXI provides that "where on the day fixed or on any other day to which the hearing may be adjourned the applicant does not appear when the case is called on for hearing, the Court may make an order that the application be dismissed". Rule 106 of Order XXI provides that "the applicant against whom an order is made under sub-rule (2) of Rule 105 or the opposite party against whom an order is passed ex parte under sub-rule (3) of that rule or under sub-rule (1) of Rule 23, may apply to the Court to set aside the order, and if he satisfies the Court that there was sufficient cause for his non-appearance when the application was called on for hearing, the Court shall set aside the on such terms as to costs or otherwise as it thinks fit, and shall appoint a day for the further hearing of the application." He further invited the attention of this Court toward the provisions of Order XLIII Rule 1 (ja) of Code, which provides that "an appeal shall lie from the orders rejecting the application made under sub-rule (1) of Rule 106 of Order XXI, provided that an order on the original application, that is to say, the application referred to in sub-rule (1)of Rule 105 of that Order is appealable".