M.Y.EQBAL, J. - (1.) THIS application under Article 227 of the Constitution is directed against the order dated 31.7.2006 passed by Munsif 1st Court, Dhanbad whereby he has allowed the objection filed by the judgment -debtor under Sec. 47 of the Code of Civil Procedure (shortly CPC) and dismissed the Execution Case No. 05/2003 as being barred by limitation.
(2.) THE facts of the case lie in a narrow compass: The original plaintiffs, namely Sheo shankar Mahto and Dasrath Mahto filed a suit in the year 1971 being Title Suit No. 187 of 1971 in the court of Munsif, Dhanbad against the original defendants, Bishwanath Thakur and Ful Kumari Devi for declaration of their possession or in the alternative, recovery of possession of the. suit property by evicting the defendant 1st party there from besides a decree of permanent injunction and for removal of structures from the portion of the land. The suit was decreed in terms of judgment dated 11.3.1977. The respondent, Bishwanath Thakur preferred an appeal being Title Appeal No. 66 of 19.77. The said appeal was allowed by the First Additional Sub Judge, Dhanbad in terms of judgment dated 12.9.1979. The plaintiffs then preferred Second Appeal No. 245 of 1979 before the Patna High Court, Ranchi Bench. The said Second Appeal was finally heard and allowed in favour of the plaintiffs Sheo Shankar Mahto and others by judgment dated 3.4.1989 and the judgment and decree in Title Appeal was set aside and that of the Munsif was affirmed. Thereafter, in 1993 the plaintiffs/decree holders filed Execution Case No. 23 of 1993 for execution of the decree. In the said Execution case the judgment debtor/defendant No. 1 filed objection under Sec. 47 Civil Procedure Code which was rejected by the Executing Court by order dated 11.6.1996 and the said order was affirmed in Civil Revision No. 269/1996. The defendant/Judgment debtor preferred Special Leave Petition before the Supreme Court but the said petition was also dismissed by order -dated 3.2.1997. It appears that Execution Case No. 23 of 1993 remained pending and was adjourned from time to time up to September, 2000. The said Execution case No. 23/93 was ultimately dismissed for default on 22.9.2000. Therafter the legal representatives of plaintiff No. 1/decree holder and plaintiff No. 2 filed a petition on 17.4.2003 for execution of the said decree which was numbered as Execution Case No. 05/2003. In the said Execution Case the judgment debtor filed objection under Section 47 Civil Procedure Code questioning the maintainability of the fresh execution case and contended that the said Execution Case was barred by limitation. The Executing Court, after hearing the parties, finally dismissed the said execution case as being barred by limitation by passing the impugned order dated 31.7.2006. In the light of the aforesaid facts the only question that falls for consideration is as to whether the second execution case has rightly been dismissed as being barred by limitation ?
(3.) MR . S.N. Das, leaned Counsel for the petitioner assailed the impugned order as being illegal and wholly without jurisdiction. Learned Counsel submitted that earlier execution case No. 23/93 was dismissed only because after the death of original decree holder the present petitioner was not substituted, as there was no provision for substitution in execution proceeding. Learned Counsel further submitted that second execution was filed on 17.4.2003 i.e. well within three years from 22.9.2000 when earlier execution case was dismissed for default. Learned Counsel put reliance on the decision of the Madras High Court in the case of K.P. Chidambara Mudaliar , in the case of Kaibala Padhan. V/s. Sanyasi Sasamala and Anr. and on the decision of the Supreme Court in the case of Chandi Prasad and Ors. V/s. Jagdish Prasad and Ors.;