VINOD KUMAR AND OTHERS Vs. MURTI HANUMANJI

JUDGEMENT

(1.) Decree holder through his L.Rs. has invoked jurisdiction of this Court under Article 227 of the Constitution of India, assailing order dated 10.5.2008 passed by the Executing Court/Civil Judge, Senior Division, Karnal, whereby the Executing Court dismissed the execution application holding it to be time-barred.

(2.) Brief facts of the present case, inter-alia, are that Dharam Pal father of petitioners No.4 and 5, grandfather of petitioners No.1 and 2 and husband of petitioner No.3 filed a suit in the Court of Sub Judge, Ist Class Karnal, seeking mandatory injunction and permanent prohibitory injunction against the defendants - respondents herein, directing the defendants to remove the wall on the northern side of the suit property and to restore the wall on the western side and restraining the defendants from raising any construction over the suit property and from interfering in the possession of the plaintiff over the same directly or indirectly. Suit filed by Dharam Pal - predecessor-in- interest of petitioners was decreed ex-parte on 11.12.1987, thereby directed the defendants - respondents herein to remove the wall on the northern side of the suit property and to restore the wall on the western side and restrained the defendants from raising any construction over the suit property and further not to interfer in the possession of the plaintiff over the same. Defendants - respondents thereafter, moved an application under Order 9 Rule 13 CPC for setting aside the ex-parte decree dated 11.12.1987, on 10.3.1989. Meanwhile, Dharam Pal also moved an execution application on 3.9.1988 against the judgement debtor - respondents herein. The Sub Judge vide order dated 12.6.1999, after recording statement of the defendants that they will not raise any construction over the land in question till the final disposal of the application under Order 9 Rule 13 CPC, directed the execution application to be taken up along with the application filed under Order 9 Rule 13 CPC. The application filed under Order 9 Rule 13 CPC was dismissed vide order dated 27.2.2003. Defendants - respondents herein preferred an appeal challenging the order dated 27.2.2003 vide which the application filed under Order 9 Rule 13 CPC was dismissed. The appeal was also dismissed vide order dated 30.7.2003. During the pendency of the appeal, the Appellate Court had stayed the execution of the ex-parte decree dated 11.12.1987. The respondents thereafter preferred a revision i.e. C.R. No.4735 of 2003 in this Court, which was also dismissed on 4.4.2006. Respondents herein challenged the order dated 4.4.2006 by filing SLP (Civil) No.10730 of 2006, which was also dismissed by Hon'ble the Supreme Court vide order dated 17.7.2006.

(3.) After dismissal of the application filed under Order 9 Rule 13 CPC up to the Supreme Court on 17.7.2006, an execution application dated 22.7.2006 was filed before the Executing Court for execution of the decree dated 11.12.1987. The Executing Court vide impugned judgement dated 10.5.2008 dismissed the execution application moved by the petitioners herein on the ground that the ex-parte decree was passed on 11.12.1987 and the application for execution was moved on 22.7.2006 i.e. after 19 years of the passing of the ex-parte decree and hence, the same is barred by time under Article 135 of the Limitation Act, 1963 (hereinafter referred to as the 1963 Act).