Ram Ji Dass (D) by
LRS. Vs. Indian Overseas Bank  INSC 2039 (28 November 2008)
SUPREME COURT OF
INDIA RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (Civil)
No(s).23413/2005 (From the judgement and order dated 21/07/2005 in CR No.
3694/2005 of The HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH) RAM JI DASS
(D) BY LRS. Petitioner(s) VERSUS INDIAN OVERSEAS BANK Respondent(s) (With
prayer for interim relief and office report) Date: 28/11/2008 This Petition was
called on for hearing today.
HON'BLE MR. JUSTICE
S.B. SINHA HON'BLE MR. JUSTICE CYRIAC JOSEPH For Petitioner(s) Mr. H.C.
For Respondent(s) Mr.
K.N. Balgopal, Sr.Adv.
Mr. A.P. Mukundan,
UPON hearing counsel
the Court made the following ORDER Leave granted.
The appeal is
dismissed in terms of the signed order.
[ Meenu Sethi ] [
Pushap Lata Bhardwaj ] A.R.-cum -P.S. Court Master Signed order is placed on
the file IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL
APPEAL NO.7090 OF 2008 (Arising out of S.L.P. (C) No.23413/2005) Ram Ji
Das(dead) by Lrs. ...Appellants Versus Indian Overseas Bank ...Respondent O R D
E R Leave granted.
This appeal is
directed against the judgment and order dated 21.7.2005 passed by a learned
Single Judge of the Punjab and Haryana High Court in Civil Revision No. 3694 of
2005 whereby and whereunder the objection petition filed by the appellant
herein under Section 47 of the Code of Civil Procedure was dismissed.
The basic fact of the
matter is not in dispute.
A decree for recovery
of money was passed against the appellant and in favour of the decree
holder-respondent on 5.9.1987. An application for execution of the said decree
was filed on 10.4.1997. On the respondent's failure to take steps, the said
Execution Petition was dismissed for default on 11.3.2000.
filed a second execution application on 27.4.2000 but together therewith it also
filed an application for summoning of the original file as also the execution
file for the purpose of directing recovery of the amount by sale of the
mortgaged land, inter alia, stating:
" 3. That the
execution petition was fixed for the report of the Tehsildar after sale of the
4. That the absence
of the counsel for the petitioner/decree holder was not intentional.
It is therefore,
prayed that this Ld. Court be pleased to summon the previous file and the
proceedings from the stage it was dismissed be started i.e. the property
mortgaged be put to sale and the amount standing due from the JDs be recovered
in accordance with the decree."
By reason of an order
dated 6.10.2001, the learned executing Court allowed the said application opining
" By filing the
present application, it is prayed that the proceedings from this stage be taken
where it was dismissed i.e. property mortgaged be put to sale and the amount
standing due from the J.Ds. is recovered.
I have heard the
arguments advanced by the counsel for the decree holder and perused the case
file very carefully.
From the perusal of
the file, it is observed that the execution petition was dismissed on 11.3.2000
and the application was moved on 7.4.2000. In the interest of justice, the
application in question stands allowed and proceedings be taken from the stage
where it was dismissed i.e. the property be mortgaged be put to sale and the
amount standing due to the J.Ds. be recovered."
hereinbefore, the revision application filed there against was dismissed.
appearing on behalf of the appellants would urge that the second execution
application was not maintainable being barred by limitation.
Although, the -2-
learned counsel is right that the second execution application of its own would
have been maintainable being barred by limitation as the decree was passed on
5.9.1987 and the said application was filed on 27.4.2000, but as it is evident
that the respondent had also for all intent and purport filed an application
for recalling of the said order dated 11.3.2000 and the learned executing Court
having allowed the same, we are of the opinion that the first execution
application having been revived, the execution case must proceed in accordance
With the aforesaid
observations, the appeal is dismissed. No costs.
[ CYRIAC JOSEPH ]
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