AVTAR SINGH Vs. SAT PAL

JUDGEMENT

(1.) Decree-holders/petitioners are assailing order dated 2.12.2009 passed by Executing Court/Additional Civil Judge (Senior Division), Gurdaspur, thereby rejecting execution application filed by the decreeholders being time-barred.

(2.) The brief facts of the present case are that plaintiffs/decree-holders have filed suit for possession being suit No. 124 of 1988, in the Court of Sub Judge, 1st Class, Gurdaspur. Suit was decreed ex parte in favour of the plaintiffs/decree-holders/petitioners vide judgment and decree dated 27.7.1990. Plaintiffs/decree-holders moved an execution application on 16.4.1991 before the Executing Court, which was registered as execution case No. 47 of 1991. After the filing of the execution application, defendants/respondents moved an application under Order 9 Rule 13 CPC for setting aside ex parte judgment and decree dated 27.7.1990. During the pendency of the application under Order 9 Rule 13 CPC, learned Executing Court vide order dated 14.6.1993 directed to consign the execution application till the disposal of application under Order 9 Rule 13 CPC. Ultimately, application under Order 9 Rule 13 CPC moved by defendants/respondents came to be dismissed vide order dated 20.3.1997. Thereafter, decree-holders/petitioners moved an application on 12.4.2005 before the Executing Court, requesting the Executing Court for revival of the execution, which was directed to be consigned vide order dated 14.6.1997. Learned Executing Court vide impugned order dated 2.12.2009 dismissed the application for execution as well as revival application, observing therein that decree for possession was passed on 27.7.1990 and revival application is moved on 12.4.2005, hence it is barred by Article 136 of the Limitation Act since decree for possession can be executed within 12 years and not beyond that.

(3.) I have heard learned Counsel for the parties and perused the record. Undisputedly, suit No. 124 of 1988 filed by plaintiffs/petitioners was decreed ex parte against defendants/respondents vide judgment and decree dated 27.7.1990. Undisputedly, execution to recover possession pursuant to the judgment and decree dated 27.7.1990 was filed by the decree-holders on 16.4.1991, which was registered as execution No. 47 of 1991. Undisputedly, during the pendency of the execution dated 16.4.1991, an application under Order 9 Rule 13 CPC was moved by the defendants before the learned trial Court on 7.1.1992. Undisputedly, execution filed by the decree-holders being execution case No. 47 of 1991 was directed to be consigned during the pendency of the application under Order 9 Rule 13 CPC vide order dated 14.6.1993. Undisputedly, application under Order 9 Rule 13 CPC moved by the defendants was ultimately dismissed vide order dated 20.3.1997. Undisputedly, thereafter defendants have filed another suit being No. 47 of 2005 on 22.2.2005 seeking declaration and permanent prohibitory injunction against the petitioners herein. Undisputedly, petitioners/decree-holders meanwhile filed revival application dated 12.4.2005 in the execution case No. 47 of 1991 seeking revival of execution stating that application under Order 9 Rule 13 CPC was dismissed by order dated 20.3.1997, hence decree-holders are entitled to possession as directed by the original judgment and decree dated 27.7.1990. Undisputedly, second suit filed by the judgment-debtors/respondents came to be dismissed vide judgment dated 25.7.2008 and appeal therefrom was dismissed vide judgment dated 9.9.2008. Learned Executing Court has dismissed the revival application by observing that revival application was moved after more than 15 years from the date of original decree dated 27.7.1990, hence same is barred by limitation since execution seeking possession ought to have been moved within 12 years from the date of decree.