IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.403 of 2009 DWIJENDRA NATH TIWARI SON OF LATE BISHWANATH TIWARY, RESIDENT OF VILLAGE- DAMAWALIYA, P.S. BAGAHA, P.O.- NARAIPUR, DISTRICT- WEST CHAMPARAN ……PLAINTIFF-DECREE HOLDER- PETITIONER Versus LALA CHOUDHARY SON OF VINDHYACHAL CHOUDHARY, RESIDENT OF VILLAGE- DOMAWALIYA P.S. BAGAHA, P.O.– NARAIPUR, DISTRICT- WEST CHAMPARAN ……DEFENDANT-JUDGMENT DEBTOR- OPPOSITE PARTY ----------- 2. 30/03/2009 Heard learned counsel for the petitioner. Plaintiff-Petitioner has filed this revision application against order dated 12.12.2008 passed by Munsif, Bagaha, West Champaran in Misc.Case No.8 of 2008, by which the miscellaneous application of the petitioner filed for restoration of Execution Case No.5 of 1990 dismissed for default by order dated 28.3.2008 has been rejected. From the order impugned it appears that learned court below got an impression that the suit had been instituted in the name of a dead person as miscellaneous case was filed by the petitioner showing his father as dead, who was plaintiff decree holder. From the copy of the miscellaneous application, annexed as Annexure-2, it appears that the petitioner also committed - 2 - mistake by not mentioning the fact in the miscellaneous application that his father, plaintiff decree holder, had died during the pendency of the execution case and therefore, petitioner was entitled to prosecute the execution case. In that view of the matter, due to deficient pleadings in the miscellaneous application, no fault can be found in the impugned order. However, it is observed that the petitioner will be at liberty to file a fresh miscellaneous application for restoration of Execution Case No.5 of 1990 dismissed for default by order dated 28.3.2008, giving detailed facts with regard to death of his father, as claimed, occurring during the pendency of the execution proceeding. If such an application is filed, the court below shall consider the same on its merit without being prejudiced from the fact that order dated 12.12.2008 was passed as deficient pleadings were made by the petitioner in his earlier application. With the above observations, this application is disposed of. Pradeep/ (J. N. Singh, J.)