RAMRATAN Vs. LAKHAN SINGH

JUDGEMENT

(1.) This civil revision under Sec. 115 of CPC has been filed against the order dtd. 29/8/2018 passed by Additional Judge, Lateri to the Court of Civil Judge, Class-I, Vidisha, in M.J.C. No. 03/2016, by which an application filed by applicants under Sec. 151 of CPC has been rejected.

(2.) The facts necessary for disposal of present revision, in short, are that one Motilal filed a suit for recovery of possession on the basis of title. Civil Suit No. 121A/1973 was dismissed vide judgment and decree dated 24-12- 1975. Motilal challenged the aforesaid judgment and decree by filing Appeal No. 162-A/1978, and the said appeal was allowed by judgment and decree dtd. 27/8/1984, and a decree for restoration of possession was granted. Said judgment and decree was challenged by the judgment debtor by filing Second Appeal No. 180/1984, and this Court by order dtd. 12/10/1984 stayed the execution of the decree. Meanwhile, Motilal filed an application for execution of judgment and decree passed by the First Appellate Court, but in view of the interim order, execution proceedings remained stayed. Second Appeal No. 180/1984 was dismissed by this Court by order dated 11- 12-1984 at motion stage itself. However, the execution proceedings remained pending awaiting the order passed by the High Court. The case was continuously listed after 11/12/1984 and the same was adjourned awaiting the order. Respondent never informed the executing Court that appeal has already been dismissed on 11/12/1984. On 1/8/1989, the case was listed before the executing Court, but on the said date, Presiding Officer was on leave and the matter was adjourned for 3/10/1989. On 3/10/1989, counsel for the decree holder Motilal did not appear and execution proceedings were dismissed for want of prosecution.

(3.) It is the case of applicants that since Motilal was under bona fide belief that there is an interim order passed by this Court, therefore he never contacted his counsel in the execution proceedings. Later on, Motilal died and even the judgment debtor Harnam Singh also died. The legal representatives of Motilal, who are the applicants, were not having any knowledge regarding the order passed by the High Court on 11/12/1984 in Second Appeal No. 180/1984. Accordingly, in the year 2016, they tried to find out the status of the case, then on 20/10/2016, present applicants came to know about the order passed in S.A. No. 180/1984. Thereafter they searched for the status of the execution case and came to know that execution was already dismissed in default on 3/10/1989. It is submitted that since the order dtd. 3/10/1989 should not have been passed without issuing notice to the decree holder, therefore, an application was preferred by applicants before the executing Court under Sec. 151 of CPC with a prayer that order dtd. 3/10/1989 be cancelled and possession of the property may be delivered to the decree holder.