LALTA PARSHAD Vs. MST. BADAMI AND OTHERS
HIGH COURT OF PUNJAB AND HARYANA
Mst. Badami And Others
Click here to view full judgement.
Gurnam Singh, J. -
(1.) THIS second appeal against order arises out of execution proceedings. On 11 -8 -1991 BK. Muni Lal obtained a decree for ejectment and rent against Lalta Parshad. During the pendency of these proceedings Shri Brij Balabh Parshad son of judgment -debtor wrote a letter praying for stay of proceedings under the Patiala Soldiers Litigation Act (Act 11 of 1997 BK.). On receipt of this letter the executing Court passed an order that the proceedings be stayed and the case be consigned to the record room till the return of the applicant. Against this order the decree -holder went in revision to the High Court of the erstwhile Patiala State which was dismissed. On receipt of record from the High Court the executing Court made another order on 9 -12 -2001 BK. which was virtually the same as the order passed on 2 -11 -1999 BK.
(2.) ON 9 -12 -2006, Mst. Badami respondent, daughter of Muni Lal, decree -holder, applied to the executing Court for being brought on the record in place of her father who had died and for the resumption of the execution proceedings. She alleged that after her father's death there had been litigation between her and other persons regarding the property of her father and the matter had finally been decided in her favour. She also mentioned that the proceedings in the execution were stayed by the Court vide its order dated 9 -12 -2001 BK. She, therefore, prayed that the proceedings which were stayed be revived. The judgment -debtor opposed this application mainly on the grounds (1) that the order of the executing Court dated 2 -11 -99 whereby the proceedings had been stayed was illegal; (2) that the application for revival of the execution proceedings was barred by time; and (3) that the execution application was beyond limitation. The Court framed the following issues:
1. Is the application for restoration within limitation? On applicant.
2. Is the executing court's, order, dated 9 -12 -2001, wherein the earlier order, dated 2 -fl -1999, regarding the stay of the execution proceedings was repeated, against law; and the same cannot be interpreted to the vantage of the applicant? On respondent.
Is the execution proceeding beyond limitation: and as such the present application pertaining to the restoration thereof deserves being rejected? On respondent.
The executing Court found all the issues against the judgment -debtor and ordered the resumption of proceedings from the stage when they were stayed. In appeal by the judgment -debtor the finding of the executing Court was confirmed. The judgment -debtor being dissatisfied filed second appeal in the High Court. The appeal came up for hearing before Teja Singh C.J. who referred it to a Division Bench as it involved questions of general importance on which there was divergence of opinion of the High Courts.
3. The Learned Counsel for the appellant urges that the application of Mst. Badami for restoration of execution proceedings being barred by time was not competent and was liable to be dismissed. It was the duty of the decree -holder to apply for execution within time after the contingency on account of which proceedings were stayed had ceased to exist. It is not denied by the respondent that she made this application a little more than six years after the proceedings had been stayed by the executing Court by its order dated 2 -11 -1999. On the other hand the Learned Counsel for the decree -holder contends that it was not incumbent on the decree -holder to take out fresh execution proceedings as the previous application was still pending decision. He, therefore, contends that the question of limitation in this case did not arise.
He further contends that it was in fact the duty of the Court to restore the execution application suo motu independently of any application from either side. Learned Counsel further urges that there is no provision in the Civil Procedure Code requiring the decree -holder under such circumstances either to put in a fresh application or an application for restoration when the previous application was still pending.
(3.) IN my opinion there is no force in the contention raised by the appellant. The consigning of execution application to the record room does not terminate execution proceedings. In such a case the application is not disposed of on merits. The proceedings are suspended by an act of the Court and without any fault of the decree -holder. In the present case he (D.H.) agitated against the order slaying the proceedings. In fact in such circumstances the decree -holder has a right to ask the Court to resume the execution proceedings which are interrupted by the intervention of the opposite party. Even after the stay order has ceased, to operate it is not obligatory on the decree -holder to make application to set the execution proceedings in motion. In case any such application is made it is not governed by Art. 181, Limitation Act, as such an application for revival of execution proceedings is not subject to any period of limitation. Even otherwise Art. 181 is not attracted as it applies only to applications made as provided by the Civil Procedure Code.
There is no provision in the Code making it obligatory on the decree -holder to present an application for revival of his pending application. Thus the question of limitation for this reason also does not arise and the provisions of Art. 181, Limitation Act, are not attracted. The view of the matter I take is supported by overwhelming authorities. In - 'Bhan Datta v. Mt. Tulsa Kuer', : AIR 1940 All 151 (FB) (A) it was held:
When execution of decree is stayed by court under O. 21. R. 29, Civil P.C, pending disposal of judgment -debtor's suit and execution application is thereupon consigned to record room, this does not terminate execution proceedings. When the stay order has ceased to operate it is not incumbent on the decree -holder to make an application to set execution proceedings in motion. If he makes such an application it is not governed by Art. 181, Limitation Act, and cannot be barred even it made more than three years after the disposal of the judgment -debtor's suit.
The same view was taken by Passey J. (now C.J.) in - 'Gurdial Singh v. Mst. Partapi',, 10 Pat LR 353 (B). The learned Judge stuck to his view in - 'Gaya Parshad v. Sardara Mal, Civil Appeal No. 331 instituted on 15 -11 -2002, D/ - 1 -11 -2003 (Pepsu) (C). The other authorities which follow the same view are - 'Babulal v. Ramji Das',, AIR 1950 MP 71 (D); - 'Pandurang v. Rameshwar : AIR 1948 Nag 284 (E); - 'Satyanarayana v. Nagabhushanam', : AIR 1951 Mad 429 (F).;
Copyright © Regent Computronics Pvt.Ltd.