YASH PAL SHARMA Vs. AJIT SINGH

JUDGEMENT

(1.) The challenge in the present petition is to the order passed by the learned Executing Court on 19.4.2001, holding that the execution petition is liable to be dismissed, as the petitioner has failed to seek restoration of the earlier execution application, dismissed in default on 17.1.1991.

(2.) The plaintiff's suit for possession of 6 kanal 5 marlas of land, was decreed on 13.11.1981. The first appeal was dismissed on 19.3.1994 and the second appeals by this Court on 24.7.1984. An application for execution of the said judgment and decree was filed on September 26/October 13, 1984. The judgment debtor filed objections but the execution application was dismissed in default on 17.1.1991. The petitioner sought execution of the decree by filing a fresh execution petition on 25.12.1995. The learned trial Court relied upon a judgment reported as Chander Bhan Singh v. III Additional Judge, Gonda and Ors. 1996(1) Civil Court Cases 44, to hold that the remedy of the petitioner was to seek restoration of his execution application and not to file a fresh execution petition. Thus, the execution was dismissed.

(3.) The question which arises for consideration in this petition whether execution application is maintainable in the circumstances though it is within the period of limitation contemplated under Article 136 of the Limitation Act' or the remedy with the petitioner was to seek restoration of the execution application dismissed in default.