CR No. 6023 of 2008 1 In the High Court of Punjab and Haryana, Chandigarh. CR No. 6023 of 2008 (O&M) Date of Decision: 03.08.2010 Vinod Kumar and others ....Petitioner Versus Murti Hanumanji ....Respondents. Coram:- Hon'ble Mr. Justice Alok Singh 1.Whether reporters of local news papers may be allowed to see judgement ? 2. To be referred to reporters or not ? 3. Whether the judgement should be reported in the Digest ? Present: Mr. Ashish Aggarwal, Advocate for the petitioner. Mr. Rahul Sharma, Advocate for the respondent. ... Alok Singh, J. Decree holder through his L.Rs. has invoked jurisdiction of this Court under Article 227 of the Constitution of India, assailing order dated 10.5.2008 passed by the Executing Court/Civil Judge, Senior Division, Karnal, whereby the Executing Court dismissed the execution application holding it to be time-barred. Brief facts of the present case, inter-alia, are that Dharam Pal father of petitioners No.4 and 5, grandfather of petitioners No.1 and 2 and CR No. 6023 of 2008 2 husband of petitioner No.3 filed a suit in the Court of Sub Judge, Ist Class Karnal, seeking mandatory injunction and permanent prohibitory injunction against the defendants – respondents herein, directing the defendants to remove the wall on the northern side of the suit property and to restore the wall on the western side and restraining the defendants from raising any construction over the suit property and from interfering in the possession of the plaintiff over the same directly or indirectly. Suit filed by Dharam Pal - predecessor-in-interest of petitioners was decreed ex-parte on 11.12.1987, thereby directed the defendants – respondents herein to remove the wall on the northern side of the suit property and to restore the wall on the western side and restrained the defendants from raising any construction over the suit property and further not to interfer in the possession of the plaintiff over the same. Defendants – respondents thereafter, moved an application under Order 9 Rule 13 CPC for setting aside the ex-parte decree dated 11.12.1987, on 10.3.1989. Meanwhile, Dharam Pal also moved an execution application on 3.9.1988 against the judgement debtor – respondents herein. The Sub Judge vide order dated 12.6.1999, after recording statement of the defendants that they will not raise any construction over the land in question till the final disposal of the application under Order 9 Rule 13 CPC, directed the execution application to be taken up along with the application filed under Order 9 Rule 13 CPC. The application filed under Order 9 Rule 13 CPC was dismissed vide order dated 27.2.2003. Defendants – respondents herein preferred an appeal challenging the order dated 27.2.2003 vide which the application filed under Order 9 Rule 13 CPC was dismissed. The appeal was also dismissed vide order dated 30.7.2003. During the pendency of the appeal, the CR No. 6023 of 2008 3 Appellate Court had stayed the execution of the ex-parte decree dated 11.12.1987. The respondents thereafter preferred a revision i.e. C.R. No.4735 of 2003 in this Court, which was also dismissed on 4.4.2006. Respondents herein challenged the order dated 4.4.2006 by filing SLP (Civil) No.10730 of 2006, which was also dismissed by Hon’ble the Supreme Court vide order dated 17.7.2006. After dismissal of the application filed under Order 9 Rule 13 CPC up to the Supreme Court on 17.7.2006, an execution application dated 22.7.2006 was filed before the Executing Court for execution of the decree dated 11.12.1987. The Executing Court vide impugned judgement dated 10.5.2008 dismissed the execution application moved by the petitioners herein on the ground that the ex-parte decree was passed on 11.12.1987 and the application for execution was moved on 22.7.2006 i.e. after 19 years of the passing of the ex-parte decree and hence, the same is barred by time under Article 135 of the Limitation Act, 1963 (hereinafter referred to as the 1963 Act). Learned counsel appearing for the petitioners vehemently argued that undisputedly execution application was moved by the predecessor-in-interest of the petitioners on 3.9.1988, which was directed to be heard along with the application filed under Order 9 Rule 13 CPC by the Civil Judge and the Appellate Court while hearing the application under Order 9 Rule 13 CPC, also directed to stay execution of the decree, hence second execution application for revival of the first execution application is not time-barred. He further argued that since initially execution application was moved on 3.9.1988, well within the time, the Executing Court was not within its jurisdiction in dismissing the execution application as barred by CR No. 6023 of 2008 4 time under Article 135 of the 1963 Act. Mr. Rahul Sharma, learned advocate appearing for the respondents – JD argued that the application filed under Order 9 Rule 13 CPC is not in continuation of the suit and hence any appeal, revision or SLP arising out of dismissal of application under Order 9 Rule 13 CPC cannot be said to be in continuation of the suit, which was decreed ex-parte vide order dated 11.12.1987, hence the application is clearly time-barred in view of Article 135 of the 1963 Act. Undisputedly, ex-parte decree was passed on 11.12.1987 and undisputedly, execution application was moved on 3.9.1988. Undisputedly, the trial Court while hearing application under Order 9 Rule 13 CPC for setting aside ex-parte decree was pleased to direct vide order dated 12.6.1999 to attach the execution application with the application filed under Order 9 Rule 13 CPC. Undisputedly, the Court hearing the application filed under Order 9 Rule 13 CPC also recorded the statement of the respondents herein to the effect that they will not raise any construction over the property in dispute. Undisputedly, the Appellate Court hearing the appeal against the dismissal of the application under Order 9 Rule 13 CPC also stayed execution of the decree. Undisputedly, appeal arising out of the proceedings under Order 9 Rule 13 CPC was dismissed on 30.7.2003. Thereafter, admittedly revision was dismissed on 4.4.2006 and SLP was dismissed on 17.7.2006. In view of the above undisputed – admitted facts, decree holders were restrained from proceeding with the execution during the pendency of the application under Order 9 Rule 13 CPC, in the opinion of this Court, the execution application moved by the petitioners after the CR No. 6023 of 2008 5 dismissal of the SLP on 17.7.2006 by the Supreme Court, cannot be said to be time-barred. It was moved well within three years from the date of dismissal of the SLP. Alternatively, even if it is assumed that there was no stay by this Court or by the Supreme Court during the pendency of the revision or SLP, since appeal was dismissed on 17.7.2006 and there was stay operating against the execution of the decree, hence execution application moved on 22.7.2006 is well within three years from the date of appellate Court judgement dated 30.7.2003. In view of the above finding, judgement impugned cannot stand in the scrutiny of law. Petition is allowed. Impugned judgement is set aside. The Executing Court is directed to decide the execution application on merits without any further delay. ( Alok Singh ) Judge 03.08.2010 sk.