IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 3606 of 2007 Date of Decision : September 30, 2008 Bhagat Singh Bhugarni ....Petitioner Versus Punjab and Sind Bank and others .....Respondents CORAM : HON’BLE MR. JUSTICE T.P.S. MANN Present : Mr. R.K. Gautam, Advocate for Mr. N.S. Sitta, Advocate for the petitioner. Mr. Rohit Sapra, Advocate for contesting respondent No. 1. T.P.S. MANN, J. Orders passed by the executing Court, while dismissing the application of judgment debtor/petitioner under Section 152 read with Section 151 C.P.C. for amendment of the judgment and decree dated 28.3.1987 and in dismissing the objection petition, have been challenged in the present revision under Article 227 of the Constitution of India. Suit filed by respondent-bank for recovery of Rs. 8013.95 p. was decreed against the petitioner on 28.3.1987. During execution of the decree, an application under Section 152 read with Section 151 C.P.C. was filed by the petitioner on the ground that Civil Revision No. 3606 of 2007 in the written statement, he had referred to his request for advancement of loan of Rs. 1,20,000/- but the same was wrongly mentioned in the judgment and decree as Rs. 15,000/-. This averment, as mentioned in the written statement and referred to in the judgment dated 28.3.1987, did not affect the final outcome of the suit which was decreed only for recovery of Rs. 8013.95 p. along with interest at the contractual rate. The learned executing Court was correct in saying that the application, as filed, was false and frivolous so as to delay the proceedings in the execution. No material is available on the file to show that the petitioner was ever prejudiced on account of incorrect reproduction of his stand in the judgment dated 28.3.1987 from the one taken in the written statement. Impugned order dated 8.6.2007 (Annexure P.7), while dismissing the application of the petitioner under Section 152 C.P.C. read with Section 151 does not call for any interference. As regards order dated 8.6.2007 passed by learned executing Court while dismissing the objection petition of the petitioner, it has been submitted by the petitioner that the suit was decreed on 28.3.1987 and the decree could be executed within a period of 12 years thereafter but as the execution application was filed on 31.3.1999, it was clearly beyond the period of limitation, and therefore, the objection petition filed by the petitioner was liable to be - 2 Civil Revision No. 3606 of 2007 accepted. Though in the impugned order Annexure P.8, it has been mentioned as if the execution application was filed on 31.3.1999 in respect of decree dated 28.3.1987, yet learned counsel for the respondent-bank has already placed on record certified copy of the order dated 22.3.1999 passed by the executing Court while entertaining the execution application and adjourning the same to 31.3.1999 for office report. It was, thus, clear that the execution was applied for by the respondent-bank on 22.3.1999 and not on 31.3.1999. Therefore, the execution was within the period of limitation prescribed, i.e. 12 years from the date of the passing of the decree. Learned counsel for the petitioner has further submitted that earlier to the filing of the execution in question, respondent-bank had filed execution several times which were dismissed on 9.6.1990, 3.4.1996 and 28.3.1998. Therefore, the bank was barred from filing fresh execution on 22.3.1999 as the principle of res judicata was applicable in execution proceedings as well. Learned counsel has placed reliance on Kalji Singh (Died) and others v. Sant Lal (Died) and others 2004(2) PLR 325, Rocky Tyres v. Ajit Jain 1998(3) PLR 53 and Damodar Bhagwant Pande v. Narayan Bhagwant Pande 1999(1) Civil Court Cases 479. - 3 Civil Revision No. 3606 of 2007 Learned counsel for respondent-bank has submitted that the earlier executions were dismissed by the learned executing Court on account of non-appearance of the decree holder and, therefore, there was no bar in filing execution afresh. Learned counsel has also relied upon Yash Pal Sharma v. Ajit Singh and others 2006(4) Civil Court Cases 207, wherein it was held that if an execution is dismissed in default second execution application is maintainable, if filed within the period of limitation as provisions of order IX Rule 9 C.P.C. were not applicable to execution proceedings. The suit filed by respondent-bank was admittedly decreed on 28.3.1987. A period of 12 years is prescribed by the law of limitation for applying for execution of the decree. The present execution application had been filed on 22.3.1999, which was within the period of limitation. Two of the earlier executions were dismissed on account of non-appearance of the decree holder. As those dismissals were not on merits, therefore, they could not be treated as res judicata so as to bar the decree holder from applying for execution afresh. The third execution was dismissed under Order IX Rule 8 C.P.C. This provision pertained to the suit proceedings and not the execution proceedings. In case the defendant had appeared in the suit and plaintiff did not appear, the suit could have been dismissed under Order IX Rule 8 C.P.C. and filing of fresh suit would have been barred under Order IX Rule 9 C.P.C. As both the aforementioned - 4 Civil Revision No. 3606 of 2007 provisions come into play during the pendency of the suit, they cannot be made applicable to execution proceedings. The law is well settled by the Hon'ble Supreme Court in Shivashankar Prasad Sah and another v. Baikunth Nath Singh and others AIR 1969 Supreme Court 1971, wherein it was held that an order vide which the execution was dismissed in default was not a final decision of the Court after hearing the parties and, therefore, did not operate as res judicata. The relevant observations are as under :- “The Courts in India have generally taken the view that an execution petition which has been dismissed for the default of the decree holder though by the time that petition came to be dismissed, the judgment debtor had resisted the execution on one or more grounds, does not bar the further execution of the decree in pursuance of fresh execution petitions filed in accordance with law – see Lakshmibai Anant Kondkar v. Ravji Bhikaji Kondkar, 31 Bom LR 400 = (AIR 1929 Bom. 217). Even the dismissal for default of objections raised under Section 47, Civil Procedure Code does not operate as res judicata when the same objections are raised again in the course of the execution – see Bahir Das Pal v. Girish Chandra Pal, AIR 1923 Cal 287; Bhagwati Prasad Sah v. Radha Kishun Sah, AIR 1950 Pat 354; Jethmal v. Mst. Sakina, AIR 1961 Raj. 59; Bishwanath Kundu v Smt. Subala Dassi, AIR 1962 Cal. 272. We do not think that the decision in - 5 Civil Revision No. 3606 of 2007 Ramnarain v. Basudeo, ILR 25 Pat. 595 = (AIR 1947 Pat. 298) on which the learned counsel for the appellant placed great deal of reliance is correctly decided. Hence we agree with the High Court that the plea of res judicata advanced by the appellant is unsustainable.” While relying on the ratio of the Shivashankar Prasad Sah’s case (supra) it was held in Yash Pal Sharma’s case (supra) that the bar created under Order IX Rule 9 C.P.C. could not be made applicable as it precludes the plaintiffs from bringing a fresh suit. The provisions of Order IX Rule 9 C.P.C. could not be extended in respect of execution of a decree when the rights stands settled and only execution of a decree was required to be made. Once it is shown that the earlier executions had not been decided on merits but dismissed on account of the non-appearance of the decree holder, the various judgments cited by learned counsel for the petitioner are not applicable to the facts and circumstances of the present case as in all those cases, the earlier executions had been dismissed on merits and not on account of non-appearance of the decree holder. In view of the above, order passed by learned executing Court on 8.6.2007 while dismissing the objection petition of the petitioner does not call for any interference. - 6 Civil Revision No. 3606 of 2007 The revision is, accordingly, dismissed. ( T.P.S. MANN ) September 30, 2008 JUDGE satish - 7