- (1.) FACTS giving rise to this revision petition are that the suit for a permanent injunction filed by the decree--holders (respondents Nos. 1 to 6) in this Court was dismissed in August 1959. Their appeal was allowed in September 1960 and the suit was decreed. They took out execution on 1st October, 1960, but the same was stayed by this Court in R. S. A. No. 1492 of 1960 filed by the judgment--debtors. In September, 1969, the R. S. A. was dismissed. Thereafter, another application for execution of decree was filed. The judgment--debtors raised objections. The matter again came up to this Court. Finally, the execution appeal filed by the judgment debtors was dismissed in February 1975. During the proceedings above--said, the execution of the decree remained stayed by the order of this Court. Thereafter, on 15th December, 1975, the present execution application was filed. Upon the objections raised by the judgment--debtors, the following issues were framed by the Executing Court:- 1. Whether the execution application is in time? 2. Whether there has been any compromise between the parties after the decree of Hon'ble High Court? If so, its effect? 3. Relief.
(2.) THE Executing Court decided the issues against the judgment debtors. Hence, this revision petition by one of the judgment debtors. Learned counsel for the judgment debtor urged that since the suit was decreed in Sept. 1960, therefore, the present execution application filed in December 1975 was hopelessly barred by time. This objection has been met by the learned counsel for the decree--holders on the strength of the theory of the revival of the previous execution applications. The record shows that on receipt of the stay order from the High Court, the execution proceedings were stayed sine die and the first execution application remained undisposed of. The second execution application also met the same fate because of the stay order obtained by the judgment--debtors from this Court. In this context, the third (the present ) application cannot be said to be a new application. Support in this regard was sought from a Full Bench decision of the Allahabad High Court in Chattar Singh v. Kamal Singh, AIR 1927 All 16, laying down:- "whether an application is in substance a fresh application or an attempt to receive a former one is, as a general rule, a question of fact to be decided with reference to the circumstances of the case. " Another ruling in point cited by the learned counsel for the decree--holder is again a Full Bench decision Government of Rajasthan v. Sangram Singh, AIR 1962 Raj 43 (FB), in which it was held that in considering whether an application is for the revival of the previous application or not, what is required to be considered is whether the previous execution application was disposed of or was kept pending. If it was kept pending, it automatically follows that it can be revived either suo motu by the Court or on being invited to do so by the decree--holder.
(3.) APPLYING these principles to the facts of this case, there can be no two opinions that since the previous applications were never disposed of and in fact they were kept pending because of the stay orders passed by this Court, therefore, the present application has to be considered as an application for revival of the previous ones. All the same, learned counsel for the judgment debtor laid great emphasis on Column No. 6 of the present application requiring the decree--holders to state whether any previous execution application was made or not. This column was left blank. In other words, the pendency of the previous applications was not indicated. Be that as it may, since the record of the previous applications makes it amply manifest that none of them was disposed of, therefore non--mentioning of their pendency in Column No. 6 of the application cannot be fatal. The decision of the executing Court on Issue No. 1 is accordingly affirmed.;