Restoration of 2nd execution application dismissed in defaul
rakshnda bajaj
(Querist) 10 June 2018
This query is : Resolved
the application for execution of immovable property relating to Wakaf Act,1995 by the decree holder which was dismissed in default by the court after calling the parties for several times. An application for the restoration of the said execution was filed thereafter in time and the same was also dismissed in default in the like manner. now we, the judgement debtor understands that now the execution cannot be undertaken despite the provision of filling execution application during the 12 years period as prescribed by the limitation act. The law cannot allow the creation of nuisance of filing any number of applications for execution during the period of 12 years. whether we are free from the liability of execution of our property held by the Wakaf Board? whether restoration of 2nd execution application dismissed in default the 2nd time permissible in law?
Ms.Usha Kapoor
(Expert) 10 June 2018
plication.
20. The next submission of the learned Counsel Mr. Datar is that the very restoration of the execution petition amounts to a fresh execution and is barred by Article 136 of the Limitation Act.
Ms.Usha Kapoor
(Expert) 10 June 2018
If you show sufficient cause it is permissible in law. Why you were not present omn every hearing the Judge called you etc. If you give a satisfactory reply Your non presence would be clearly explained and it should be genuine.
Ms.Usha Kapoor
(Expert) 10 June 2018
Keshardeo v. Radha Kissen Chamria. But now that Rule 106 of Order 21 has found place in the Code the difficulty experienced by the courts earlier has been completely obviated and in exercise of their jurisdiction conferred by Rule 106 of Order 21 the Courts in suitable, cases and for justifiable reasons can restore an execution proceeding and set aside an ex parte order passed therein. In this view of the matter, even if the opposite party made the petition for restoration of the execution case under Section 151, it shall be deemed to be one under Order 21, Rule 106 of the Code. It is needless to reiterate that wrong quotation of a provision of law will not disentitle a party to a relief which he is entitled according to law nor can it be denied to him for that reason, because, it is the court which dispenses justice has to apply the correct provision of law in suitable and just cases so as to deliver the relief to a party who is entitled to it. In the aforesaid premises, I hold that the learned Subordinate Judge exercised his jurisdiction according to law in restoring the execution proceeding. The second point urged by the learned counsel for the petitioners is equally unsustainable.
Click the link for full judgment
https://indiankanoon.org/docfragment/1628002/?formInput=restoration%20of%20execution%20petition
Dr J C Vashista
(Expert) 11 June 2018
The decree passed by a competent court remained unsatisfied for 12 years do not stand. It can not be executed at this stage.
