Civil Revision Application No.199 of 2000

9th December, 2004

Petitioner Counsel: Shri. S. K. SHINDE
Respondent Counsel: Shri. V. G. GANGAPURWALA

Cases Cited:
Chidambaram Chettiar Vs. Periyasamy Chettiar, AIR 1978 Mad 370 [Para 4]

JUDGMENT

JUDGMENT :- By this civil revision application, the applicant judgment-debtor challenges the judgment and order dated 21st September, 1999 passed by the learned Civil Judge, Senior Division, Sangamner in Misc. Application No.3 of 1994.

2. The facts lie in a narrow compass and are as stated below :

The respondent No.1 filed a suit bearing Special Civil Suit No.314 of 1977 against the present applicant in which a money decree was passed against the applicant in the sum of Rs.21,145/-. The respondent No.1 filed an execution petition bearing Special Darkhast No.35 of 1989 for execution of the money decree. It appears that the respondent No.1 did not take any steps for execution after filing of the Darkhast and, therefore, by an order dated 6th September, 1990, the learned Civil Judge, Senior Division dismissed the Darkhast by following order :

"After 7-8-1990, no steps taken by the decree holder. It appears that the decree holder is not interested in prosecuting the further proceedings. The Special Darkhast stands dismissed for want of prosecution."

For a period of nearly four years thereafter, the respondent No.1 did not take any steps but in the year 1994, filed an application bearing Misc. Application No.3 of 1994 for restoration of Special Darkhast No.35 of 1989. By order dated 21st September, 1999, the said application was allowed. That order is impugned in this revision application.

3. Learned counsel for the applicant submits that when an execution petition is dismissed either in default or for not taking of steps, a fresh execution petition can be filed within the period of limitation. There is no provision in the Code of Civil Procedure for restoration of an execution which is dismissed in default or for non-prosecution. In case of a suit, which is dismissed in default, filing of a fresh suit is barred by reason of the provisions of Order 9, Rule 9 of the Code of Civil Procedure. That is the reason why a provision is made for restoration of a suit under Order 9, Rule 13 of the Code of Civil Procedure. In case of an execution petition which is dismissed in default or dismissed for non-prosecution, there is no provision for restoration like the one contained in Order 9, Rule 13 of the Code of Civil Procedure because fresh execution petition can be filed within the period of limitation for filing an execution petition which is sufficiently long i.e. 12 years. It would always be open to a decree holder to file a fresh execution petition within the period of limitation. In my view, in the absence of any express provision for restoration of an execution petition which is dismissed in default or for non-prosecution, it is not possible for a Court to restore the execution petition, which is so dismissed by resorting to section 151 of the Code of Civil Procedure. But, it would be open to the decree holder to file a fresh execution petition because filing of a fresh execution petition is not barred by any law.

4. Learned counsel for the respondent, however, refers to and relies upon a decision of Madras High Court in the case of Chidambaram Chettiar Vs. Periyasamy Chettiar (AIR 1978 Mad 370). Following two earlier judgments of the very Court it was held that when an execution petition is dismissed for statistical purposes, there being no adjudication of rights of parties on merits and there being no disposal of the contentions of the parties, the order of dismissal would not be a final order but must be deemed to be passed for "statistical purposes" and it would be possible to revive the said execution proceedings. With great respect, I am unable to agree. In an execution petition normally there is no question of adjudication of right. The rights are adjudicated between the parties at the trial. It is trite saying that an executing Court cannot go behind the decree. The executing Court only executes the decree and does not determine any right of the parties. The incidental questions which may arise, of course are decided but that is not usual adjudication of rights. I also fail to understand what is meant by dismissal of an execution petition for "statistical purpose". Dismissal of an execution petition for default or for non-prosecution is a complete dismissal and not only for the purpose of maintenance of statistics of number of cases disposed of.

5. It is also worthwhile to note that after the execution petition was dismissed for non-prosecution on 6th September, 1990, no steps were taken for a period of four years. It is true that no period of limitation is provided for filing of a restoration application for execution petition but that is because there is no provision for restoration of an execution petition. Absence of a provision regarding limitation cannot be said to confer a right on a decree holder to file an application for restoration of an execution petition after unlimited period of time.

6. For these reasons, the civil revision application is allowed and the impugned order is set aside. In the facts and circumstances of the case, the parties shall bear and pay their own costs.

Application allowed.