M/S. HASNATEY BURHANAIAYAH FIDDIAYAH Vs. KAMALKISHOR

JUDGEMENT

(1.) Heard Mrs. Rashi Deshpande, learned counsel for the petitioner and Shri D.G. Paunikar, learned counsel for the respondent. Rule. Rule made returnable forthwith. Heard finally with the consent of the learned counsel for the rival parties.

(2.) The petition challenges the order dtd. 23/03/2022 passed below Exh.14 by the learned Small Causes Court in Special Darkhast No.130/2017, whereby the application filed by the judgment debtor for dismissal of the execution proceedings for execution of the ex parte judgment and decree dtd. 09/08/2004 in Regular Civil Suit No.256/2001 has been allowed on the ground that the same was filed on 09/10/2017 that is beyond the period of 12 years of passing of the decree in Regular Civil Suit No.256/2001 and therefore was beyond the period of limitation (pg.96). The petition also challenges the order below Exh.21 dtd. 16/03/2022 dismissing the application to treat Special Darkhast No.130/2017 as an application for restoration of Special Darkhast No.135/2005.

(3.) Mrs. Deshpande, learned counsel for the original decree holder/petitioner by relying upon M/s. Botanium Limited Vs. Shri Babu Raghu, since (d) thr. Legal Heir 2018 (6) ALL MR 904, Jasraj Lalaji Oswal Vs. Raziya Mehboob Patel and another, Writ Petition No.4294/2018 decided on 18/12/2019, Chhattar Singh and another Vs. Kamal Singh and others, 1926 SCC OnLine Allahabad 258 (FB), Pentapati China Venkanna and others Vs. Pentapati Bangararaju and others AIR 1964 SC 1454, Smt. Suglabai w/o Prabhu Jaishete and another Vs. Rangrao s/o Govindrao (Since died through his L.Rs.) Sitabai w/o Rangrao and others, Civil Revision Application No.12 of 2004 decided on 20/10/2010, Shaikh Chand s/o Shaikh Ahmed and Ors. Vs. Zaitunbee w/o Shaikhlal and Ors., 2018 (3) ALL MR 213 (paras 27 and 28), Debasish Sinha Vs. Sreejib Sinha and others, Special Leave Petition (C) No.4148/2020 decided on 08/03/2021, General Manager of the Raj Durbungah, under the Court of Wards Vs. Maharajah Coomar Ramaput Singh, dtd. 21/03/1872, Narendra Kumar Sharma Vs. Nand Kishore Sharma and others (Matters Under Article 227 No.7035 of 2015, decided on 20/05/2016) , Sanjay Sharma Vs. Ajay Sharma and others CS (OS) No.911/2007, decided on 24/01/2013, contends that the impugned order cannot be sustained. She also places reliance upon Order 21 Rules 105 and 106 of the Code of Civil Procedure in support of her contention. It is also contended that presuming that Special Darkhast No.130/2017 was held to be not maintainable, it could be treated as an application for restoration of Special Darkhast No.135/2005, which was filed earlier in point of time (for which the application at Exh.21 was filed) and which came to be dismissed in default by the order dtd. 05/07/2011 for want of steps. She therefore submits that the impugned order is liable to be quashed and set aside and the application filed by the respondent/judgment debtor was liable to be rejected. An argument is also raised, contending that the decree dtd. 09/08/2004, attained finality only on 12/03/2019 when Writ Petition No.4518/2018 filed by the judgment debtor/respondent, challenging the rejection of his application for condonation of delay, came to be dismissed, and therefore, on the principle of merger the application for dismissal of the execution proceedings at Exh.14 could not have been allowed.