Research › Search › Judgment

Punjab High Court · body

2009 DIGILAW 1788 (PNJ)

Satish Kumar v. Rajinder Singh

2009-10-20

SHAM SUNDER

body2009
Judgment Sham Sunder, J. 1. This revision petition is directed against the order dated 16.09.2005, rendered by the Court of Civil Judge (Senior Division), Jalandhar, vide which, the objection - petition, filed by the Judgement-Debtor (now revision-petitioner), in the execution application, was dismissed. 2. An ejectment application was filed by Rajinder Singh petitioner (now respondent), in which ex-parte ejectment order was passed, in the year 1991. 3. During the pendency of the execution application, an objection petition, was filed, by the Judgement-Debtor (now revision-petitioner) that the same (execution application) had not been filed by a legally authorized person. It was stated that no site plan had been attached with the execution application. It was further stated that the ejectment order was passed in the year 1991, and, as such, the execution application was barred by time. It was further stated that a compromise was arrived at, between the parties, on 15.1.2004, with the intervention of Ajit Pal Singh and Ravi Kumar Khurana, whereby, the tenancy was renewed on the condition that the Judgment Debtor would pay Rs. 2000/- per month, instead of Rs. 800/- per month as rent. It was further stated that so the tenancy stood renewed. Accordingly, a prayer was made, that the objection-petition be accepted and the execution application be dismissed. 4. The objection petition was contested by way of filing reply. It was pleaded that the objection-petition was not maintainable. It was stated that though the ex-parte order was passed on 09.05.1991, yet the objector moved an application, which was dismissed on 20.11.1999. Thereafter, an appeal was preferred by the Judgement-Debtor, which was also dismissed by the Additional District Judge-cum-Appellate Authority, vide order dated 11.03.2002. It was further stated that the attorney of the decree holder, had been conducting the case right from the beginning, and it could not be said that he was not a legally authorized person. It was denied that, any compromise, was arrived at, between the parties, resulting into the renewal of tenancy. It was denied that the execution application was barred by time. 5. After hearing the Counsel for the parties, and on going through the record, the Executing Court, dismissed the objection-petition and directed that warrant of possession be issued. 6. Feeling aggrieved, against the impugned order, the instant revision petition was filed by the revision-petitioner/Judgment Debtor. 7. It was denied that the execution application was barred by time. 5. After hearing the Counsel for the parties, and on going through the record, the Executing Court, dismissed the objection-petition and directed that warrant of possession be issued. 6. Feeling aggrieved, against the impugned order, the instant revision petition was filed by the revision-petitioner/Judgment Debtor. 7. I have heard the Counsel for the parties, and have gone through the documents, on record, carefully. 8. The Counsel for the revision-petitioner submitted that the ejectment order was passed on 09.05.1991, whereas, the appeal was dismissed against the same on 11.03.2002. He further submitted that the execution application was filed on 07.08.2003, though, it could be filed within a period of 12 years, from the date of passing of ejectment order. He further submitted that the execution application was, thus, barred by time. It was further submitted by him that no stay was granted during the pendency of the appeal, filed against the ex-parte ejectment order. It was further submitted that since the execution further application was not filed within the period of limitation, the objection petition was liable to be accepted. It was further submitted that the order, being illegal, was liable to be set aside. 9. On the other hand, the Counsel for the revision-petitioner, submitted that after the passing of ejectment order dated 09.05.1991, Judgement-Debtor moved an application dated 15.07.1991 under Order IX Rule 13 for setting aside the ex-parte order dated 09.05.1991. Reply to the application dated 15.07.1991 was filed by the Decree Holder on 20.09.1991. On 15.10.1994, the application dated 15.07.1991 was also dismissed in default, whereafter the Judgement-Debtor moved an application dated 09.11.1994 under Order IX Rule 9 CPC for the restoration of application dated 15.07.1991. The application dated 09.11.1994 was allowed on 14.05.1998, whereby the application dated 15.07.1991 was restored. The application dated 15.07.1991 for setting aside the ex-parte ejectment order dated 09.05.1991 was dismissed on merits on 20.11.1999. It was further submitted that the appeal against the order dated 20.11.1999 was also dismissed on 11.03.2002., thereby making the order dated 09.05.1991 final. It was further submitted that the decree-holder filed an application for execution on 08.08.2000, which was dismissed in default, and not on merits. It was further submitted that the application dated 07.08.2003 filed by the decree-holder was in continuation of the earlier application. It was further submitted that the decree-holder filed an application for execution on 08.08.2000, which was dismissed in default, and not on merits. It was further submitted that the application dated 07.08.2003 filed by the decree-holder was in continuation of the earlier application. It was further submitted that) by no stretch of imagination, the execution application could be said to be barred by time. It was further submitted that the order, being legal and valid, was liable to be upheld. 10. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the revision- petition., is liable to be accepted and the case deserves to be remitted back to the Executing Court for deciding the objection petition afresh. The impugned order reveals that the Executing Court did not decide the matter, as to whether, the execution application was barred by time or not. Once a plea was taken, in the objection-petition, that the execution application was barred by time, it was required of the Executing Court, to decide the question of limitation, by taking into consideration the entire record. No doubt, the principle of law, laid down, in Antonysami v. Arulanandam Pillai (D) by LRs, 2002(1) RCR (Civil) 826, W.B. Essential Commodities Supply Corpn. v. Swadesh Agro Farming and Storage Pvt. Ltd., (1999) 8 Supreme Court Cases 315, Hameed Joharan (D) and others v. Abdul Salam (D) by L.Rs and others, 2001(3) Civil Court Cases 707 (SC) relied upon by the Counsel for the revision-petitioner, was to the effect, that as per Article 136 of the Limitation Act, 1963, the period of 12 years for filing an execution application is to be computed from the date when the decree becomes enforceable. There is, no doubt, with the proposition of law, laid down, in the aforesaid cases. However, it was for the Executing Court to decide the question, as to whether the execution application was filed within the period of limitation or not; and whether the execution application, which was filed on 07.08.2003 was in continuation of the earlier execution application, which was dismissed in default in the year 2000 or not. Such questions could only be decided, by the Executing Court, after affording the parties an opportunity to lead evidence, as the question of limitation, involved in the case, was a mixed question of fact and law. Such questions could only be decided, by the Executing Court, after affording the parties an opportunity to lead evidence, as the question of limitation, involved in the case, was a mixed question of fact and law. Since this aspect of the matter was not touched by the Executing Court, this Court, in its revisional jurisdiction, cannot delve into the factual matrix, at this stage. The order, is, thus liable to be set aside, and the case deserves to be remitted to the Executing Court, for deciding the objection- petition afresh. 11. For the reasons recorded above, the revision petition is accepted. The order impugned is set aside. The case is remitted to the Executing Court, for deciding the objection-petition afresh including the question, as to whether the execution application was filed within the period of limitation or not, after affording the parties an opportunity of leading evidence. The parties are directed to appear in the Executing Court on 09.11.2009 at 10.00 AM.