YASH PAL SHARMA Vs. AJIT SINGH

JUDGEMENT

(1.) YASH Pal Sharma son of Lal Chand Sharma has filed this civil revision to challenge the order of the executing court dated April 19, 2001 whereby the decree holder's second execution application was dismissed because the first execution application had been dismissed in default on January 17, 1991. The decree holder had not filed any application for its restoration by invoking the provisions of Order 9 Rule 9 Cr.P.C.

(2.) COUNSEL for the petitioner has referred to a few basic facts of the case and has submitted that suit for possession of 6 Kanals 5 Marlas of land was decreed in favour of the decree holder on November 30, 1981. The appeal filed by unsuccessful defendants was dismissed on March 19, 1984. This gave rise to filing to two Regular Second Appeals which were dismissed on July 24, 1984. Consequently decree holder took out execution and filed application on September 26/October 13, 1984 to which the judgment-debtors filed objections. This execution application was dismissed in default on January 17, 1991.

(3.) IT is quite obvious that the executing court completely misunderstood the legal provisions and misapplied the case law on the point. The Hon'ble Supreme Court in Shivashankar Prasad Sah's case (supra) held that the dismissal in default of the judgment debtor's application under Section 47 of the Code resisting execution of the decree was not a final decision of the court. Therefore, it did not operate as res judicata and the decree holder should not raise an objection in the subsequent application filed by him. In Smt. Ajit Kaur's case (supra) and in the case of State of Punjab v. Tara Chand (supra) this court had upheld the right of the decree holder to file second execution application even after the decision of the first application. Consequently it is held that the second application is maintainable and the learned executing court had committed an error of jurisdiction in dismissing the second application filed by the decree holder. The order of the executing court dated April 19, 2001 is hereby set aside. The executing court shall now proceed to decide the execution application expeditiously in accordance with law. The parties shall appears before the executing court on January 12, 2004. Order accordingly.