MADHUSUDAN BANERJEE Vs. PRAHLAD DAS

JUDGEMENT

(1.) Heard Mr. P. K. Kalita, learned counsel for the petitioners and Mr. C. Goswami, learned counsel for the opposite parties.

(2.) In this application under Section 115 of the Code of Civil Procedure the decree holder of Title Suit No.18/1973 of the court of learned Assistant District Judge, Tezpur has preferred this revision petition challenging the order dated 19.12.2013 whereby Title Execution Case No.7/2006 filed by the decree holder was dismissed by the learned executing court holding the same barred by limitation.

(3.) An ex parte decree was passed in Title Suit No.18/1973 by the learned Assistant District Judge, Tezpur on 09.09.1975 for recovery of khas possession by evicting the defendant by demolishing his structures. The defendant thereafter filed an application under Order IX Rule 13 of the Code of Civil Procedure for setting aside of the exparte decree and the same was registered as Misc.(J) Case No.25/1987. Incidentally, this application under Order IX Rule 13 was dismissed for default on 03.08.1987 for which the defendant/judgment debtor filed an application under Order IX Rule 9 of the CPC for restoration. The subsequent application appears to have been registered as Misc.(J) Case No.32/1987. Eventually, the subsequent application filed under Order IX Rule 9 was also dismissed on 20.06.1988. This order of dismissal of application under Order IX Rule 9 CPC was challenged in MAF No.102/1988 before this Court and the said MAF was dismissed on 05.09.1995. It is, thereafter, the decree holder filed an application for execution of the decree on 19.03.2006 and thereupon Title Execution Case No.7/2006 of the court of learned Civil Judge at Mangaldai was registered. In that execution proceeding the decree holder also filed an application under Section 5 of the Limitation Act explaining the delay and prayed for condoning the delay, if any, in instituting the execution proceeding. The opposite party/judgment debtor contested the condonation petition by filing objection, inter alia, on the ground that the execution petition was time barred and that no application under Section 5 of the Limitation Act is maintainable in an execution proceeding.