TULSIDAS PATEL Vs. MD. SHAFIQUE

JUDGEMENT

(1.) .In the instant application filed under Article 227 of the Constitution of India the sole question that falls for consideration is as to whether the executing Court was justified in rejecting the objection filed by the petitioner -judgment debtor under Section 47 of the Code of Civil Procedure holding that execution case is not barred by limitation.

(2.) THE undisputed facts are that the plaintiff -respondent filed Title (Eviction) Suit No.58/85 and obtained ex parte decree on 5.12.1987. The contesting defendant after having come to know about the ex parte decree filed application under Order IX, Rule 13 Code of Civil Procedure, 1908 for setting aside ex parte decree which was registered as Misc.Case No.6/88. During the pendency of the miscellaneous case, since there was no stay of the execution of the decree, respondent -decree holder filed Execution Case No.10/89 for obtaining delivery of possession. Since the decree holder did not take any step in the said execution proceeding, the same was dismissed on 26.9.1991 for default. The decree holder however, did not take any step for restoration of aforementioned Execution Case No.10/89. After the expiry of 12 years from the date of decree and also from the date of dismissal of the earlier execution case filed a fresh execution case in January,2005 which was registered as Execution Case No.2/2005. In the meantime the judgment debtor died and on service of notice to the heirs of the judgment debtors namely, petitioners, they appeared and filed objection under Section 47 Code of Civil Procedure, 1908 for dismissal of the execution case as it is barred by limitation. The respondent -decree holder filed rejoinder stating, inter alia, that after the miscellaneous case for setting aside ex parte decree was rejected, a fresh execution case was filed, which is not barred by limitation. Learned Munsif ,after hearing the parties, rejected the objection filed by the petitioner -judgment debtor under Section 47 of the Act and held that the execution case is not barred by limitation.

(3.) MR . V. Shivnath, in course of argument, relied upon the decision of this Court in the case of Bharat Ram Mahato and others vs. Ramesh Chandra Sharma and others (2007)1 JLJR 245, where the decisions of the Supreme Court have been followed. Mr. Rajesh Kumar, on the other hand, submitted that since the miscellaneous case filed under Order IX Rule 13 was pending, the decree holder did not proceed with the earlier execution case which resulted in dismissal for default. According to the learned counsel after the miscellaneous case for setting aside ex parte decree was finally rejected, the fresh execution case was filed, which is not barred by limitation. I am unable to accept the submission made by Mr. Rajesh Kumar. In the case of Bharat Ram Mahato (supra) a Bench of this Court, after following the principles laid down by Supreme Court in the case of W.B. Essential Commodities Supply Corporation vs. Swadesh Agro Farming and Storage Pvt. Ltd. and another (1998)8 SCC 315 and held :