MADAN, J. - (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. The petition for execution of original decree dated 6. 11. 82 in a Suit for specific performance and possession which now stands affirmed by virtue of dismissal of first as well as D. B. Special Appeal by this Court, was initially filed on 9. 12. 1985 but during the pendency of the appeals filed against it, this Court granted order staying execution of the said decree, therefore, the Executing Court consigned the execution petition to the record by its order dated 7. 4. 86. Further in the meantime, in another Suit filed by Shakuntala Devi against Mool Chand and Shobhagmal Jain, the present decree holder (Mool Chand) was restrained by a permanent injunction granted on 7. 11. 86 from executing the decree against the judgment debtor, against which first appeal was also filed by the decree holder but was dismissed by this Court on 12. 8. 88. Hence the proceedings for execution of the decree dated 6. 11. 82 could not be continued on account of permanent injunction dated 7. 11. 86 in aforesaid suit of Shakuntaladevi against present decree holder, which was ultimately dismissed by the Court concerned vide judgment dated 23. 10. 98 against which appeal was filed before this Court wherein this Court while dismissing the said appeal on 5. 8. 99 directed the third party who had filed suit to raise any objection in execution petition as to the bonafide purchase of the suit property as against the decree dated 6. 11. 82. It is pertinent to mention that none of the parties brought to the notice of this Court when it granted aforesaid liberty to the third party for raising any objection under Order 21 Rule 97 CPC, that petition for execution of original decree dated 6. 11. 82 was not pending rather impression was given that proceedings were pending so this Court in its order dated 5. 8. 99 granted aforesaid liberty to the third party. However, the third party raised objections by moving petition under Order 21 Rule 97 CPC before the Executing Court which too was dismissed by its order dated 7. 12. 99. This in these circumstances, when aforesaid objections under O. 21 Rule 97 CPC were being decided and dismissed by the Executing Court upon the directions of this Court under its order dated 5. 8. 99, the present decree holder moved for restoration of this execution petition on 7. 12. 99 because that was consigned to record and could not be proceeded in aforesaid circumstances. Reply to the said application was filed desisting upon restoration of execution petition on the ground of alleged delay. The executing court vide its impugned order dated 1. 4. 2000 allowed the restoration of execution petition. Hence this revision petition. I have heard the learned counsel for the petitioner at length and perused the impugned record. The contention on behalf of the petitioner for resisting the restoration of the execution petition is that the restoration has been sought by moving application beyond 12 years period of limitation from the date of the passing of the decree. Second contention is that the Executing Court has erred in holding that no application u/s 5 of the Limitation Act was required to be filed by the respondent decree holder.
(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. As regards the ratio of decision cited by the learned counsel for the petitioner, I have examined the ratio of decision in Arjun Singh vs. Mohindra Kumar (1) which is not attracted to the present case being distinguishable. As a result of the above discussion, this civil revision petition being devoid of any merit is hereby dismissed in limine. . ;