LAWS(MPH)-2011-2-30

GAYARAM TAMRAKAR Vs. CHANDRABHAN SINGH

Decided On February 24, 2011
GAYARAM TAMRAKAR Appellant
V/S
CHANDRABHAN SINGH Respondents

JUDGEMENT

(1.) This revision has been preferred by the applicant-decree holder against the order dated 22-7-2008 by which the appeal filed by the decree holder under Order 43 Rule 1 (j) of the Civil Procedure Code has been rejected.

(2.) The facts giving rise to filing of the revision are that the applicant-decree holder filed a civil suit namely Civil Suit No. l-A/76 seeking the decree of possession and damages which was dismissed on 28-2-1981. In appeal, the Appeal Court vide judgment and decree dated 3-5-1982 passed in Civil Appeal No. 17-A/81 decreed the claim of the applicant. The judgment and decree of the Appeal Court was subject matter of Second Appeal No. 259/1982 which was dismissed by this Court vide order dated 5-12-1990. On 4-5-1999, the applicant/decree holder had filed an execution case which was registered as Execution Case No. l-A/76. The aforesaid execution case was dismissed on 26-4-2000 for want of prosecution. Thereafter, the applicant/decree holder once again initiated fresh execution proceedings on 24-7-2000. The aforesaid unregistered execution proceedings were dismissed for want of prosecution on 27-11-2000. Against aforesaid order, the applicant preferred miscellaneous appeal, namely, M.A. No. 6/2000 before the Additional Judge to the Court of 1st Additional District Judge, Balaghat along with an application under Section 5 of the Limitation Act, 1963 on 21-9-2007. The Appeal Court vide order dated 22-7-2008, dismissed the appeal preferred by the applicant on the ground that proceeding initiated under Order 21 Rule 105 of the Civil Procedure Code are barred by limitation and provisions of Section 5 of the Limitation Act, 1963 do not apply to the execution proceedings. Accordingly, the order passed by the Executing Court was affirmed.

(3.) Shri Ravish Agrawal, learned Senior Counsel has drawn the attention of this Court to the provisions of Order 21 as well as various provisions contained in Chapter X of the M.P. Civil Court Rules, 1961. Learned Counsel has submitted that on 27-11-2006, i.e., the date on which the application for execution was dismissed was not a date fixed for hearing. The application for execution has been dismissed in exercise of inherent powers and not under the provisions of Order 21 of Civil Procedure Code, and therefore, the application for its restoration could also be made by invoking inherent powers of the Court for which no time limit is prescribed. In support of his submissions, learned Senior Counsel has placed reliance on the decisions rendered in the cases of Khoobchand Jain and another Vs. Kashi Prasad and others, 1986 AIR(MP) 66, Arjun Prasad Vs. Ameer Jahan Begum, 2008 AIR(All) 882, D. Radhakrishnan Vs. State of Kerala and others, 2006 NOC 678 (Ker) and Smt. Vithabai G Ghodake and another Vs. United Western Bank Ltd. and others, 2003 AIR(Kar) 266. Learned Senior Counsel further submitted that the application for execution which was not even registered, was dismissed under inherent power, therefore, the question of limitation does not arise and the Courts below erred in not appreciating this aspect of the matter.