SRI CHINTA HARAN DEY Vs. SRI DHANRAJ MAHESWARI

JUDGEMENT

(1.) A decree obtained on 30th July, 1964, is still to be executed. One of the reasons for delay is laches on the part of the decree -holder which is apparent from the fact that many title execution cases filed by bits came to be dismissed for default. Of these cases, Title Execution Case No. 39/79 merits special mention as parties had fought upto this Court against an order passed in that case. The order passed was to pay some amount of money in lieu of decree for eviction. The decree -holder filed an appeal against that order which was the subject matter of Misc. Appeal No. 13/72 in which case the order was reversed by the learned Assistant District Judge, The reversal led the judgment -debtor to prefer Misc. Appeal (Second) No. 30/72 before this Court. That appeal was dismissed on 7.1.75. Thereafter Title Execution Case No. 39/69 was taken up again and that came to be dismissed on 5.7.77 as the decree -holder had failed to take some steps, Subsequently Title Execution Case Nos. 2/80, 2/81 and 30/82 were filed and all these cases were dismissed for default as stated from the Bar. Thereafter Title Execution Case No. 2/34 was started when a plea was taken by the judgment -debtor that the same was barred by limitation inasmuch as the decree which was sought to be executed bad been passed on 30.5.64, This plea has been negatived by the learned executing Court by stating that the period of limitation shall have to be counted from 7.1.75 as on that date the decree came into existence again. Feeling aggrieved the judgment -debtor has preferred this revision.

(2.) I have been addressed at length by the learned Counsel of both the sides who have cited various decisions on the question as to when an application which on the face of it is a fresh application for execution can be treated as an application for revival or restoration of an earlier execution case. It has been held in Ram Dahin v/s. Raghunandan, AIR 1952 Gau 119, that the question as to whether an application for execution is a fresh one or is for restoration shall depend upon the facts and circumstances of the case. It was pointed out that when revival or continuation is sought, the subsequent application must be of the same nature as the previous one. Its character should not be different from the previous one. The relief sought should be the same and against the same person. The mere fact that it is not stated in express term that it is an application for revival, should not deprive the decree -holder of his right to have the previous proceeding revived or continued.

(3.) In Rameswar v/s. Madanlal, AIR 1965 A&N 96 it was bold that to decide whether an application is a fresh application the form and contents of the application have to be borne in mind, so also the position of the earlier execution proceeding. It was observed that although the previous execution bad been struck off still it may be held that the second application though in the form of afresh application is not so, but is for revival of the previous one. Similarly though the fresh application is ostensibly an application for amendment the same may amount to a fresh application for execution where fresh property has been sought to be brought in and fresh persons have been introduced as parties against whom the decree is sought to be executed. The test in that regard, as per the decisions in Shiv Shankar v/s. Yusf Hasan : AIR 1934 All 481 (FB) is to see whether the character of the fresh application if different from former application, as for instance, where the relief claimed is the second application is against properties or persons different from those mentioned in the former application.