SOBHAGMAL JAIN Vs. MOOL CHAND VAISYA

JUDGEMENT

(1.) THE petitioner (judgment debtor) has come up by way of this revision petition feeling aggrieved by an order dated 1. 4. 2000 of the District Judge, Jaipur City in Execution Application No. 71/2000, whereby application of the respondent (decree holder) for restoration of execution petition was allowed.

(2.) THE suit No. 109/81 for specific performance and possession having been filed by the respondent against the petitioner was decreed on 6. 11. 82 against which the petitioner preferred Civil First Appeal before this Court. This Court dismissed aforesaid Civil First Appeal of the petitioner on 6. 4. 1985. However, against aforesaid dismissal of first appeal DB Civil Special Appeal No. 63/85 was filed but the same was also dismissed on 3. 10. 85 by this Court.

(3.) HAVING considered the rival contentions made on behalf of the petitioner, prima facie, I am of the opinion that none of the contentions referred to above, urged by the learned counsel for the petitioner has any merit and therefore not sustainable. The court has ample power and discretion to exercise for restoration of execution proceedings provided reasonable and sufficient cause is shown for non appearance of the counsel or the party. Moreover, as is evident from the circumstances set out in aforesaid paras, it is not in dispute that the decree dated 6. 11. 82 was challenged by the present petitioner in appeals before the appellate courts and the execution of the decree was got stayed inasmuch as when the execution petition was pending, stay order was produced, thereby the execution petition was consigned to record by order dated 7. 4. 1986 before the Executing Court, and that apart in another suit filed by the purchaser of suit premises, an injunction was issued restraining the present decree holder from executing the decree dated 6. 11. 82 and the proceedings in another suit of Shakuntala, purchaser of the suit premises, continued till it culminated into final disposal, which was dismissed on 23. 10. 98 and the appeal against it was dismissed on5. 8. 99. Thus in my opinion, in the aforesaid circumstances, sufficient cause was established by the decree holder for not moving for restoration of execution petition for last so many years and the executing court has committed no jurisdictional error or illegality or any material irregularity in having restored the execution petition after the alleged 12 years period of limitation. As a result of an injunction having been issued against the decree holder in the suit filed by the purchaser of the suit premises besides stay order initially granted by this Court in appeals of the present petitioner and subsequently pendency of that suit of the purchaser and his appeal, I am of the opinion that the present decree holder had no option but to maintain silence till the suit of the purchaser of the suit premises was dismissed finally in appeal as well. I do not find any fault on the part of the decree holder in having moved for restoration of execution petition belatedly. There was sufficient cause for such alleged delay as has rightly been held by the Executing Court.