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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
C. L. PANGARKAR, J.
Radhabai w/o. Laxmanrao Ghate - Appellant
Versus
Dattatraya s/o Raghunath Jog - Respondent
Misc. Civil Application (Review) No.415/2007
Decided on : 21st August, 2007.
"18. From what has been stated earlier and the circumstances under which the earlier execution petition came to be dismissed in this case, it is clear that the decree-holder was in default. Although the executing Court had given four adjournments to the decree-holder to pay fee for attachment of moveables, the judgment-debtor being absent throughout, even on 22.6.1963, the decree-holder did not pay the fee. From the order sheet of that date, it is clear that the counsel for the decree- holder was present when the execution petition was dismissed for non-payment of fee for attachment. The decree-holder did not move the Court to grant time or for any other relief on that day with a view to see that the execution petition was saved. He did not file any appeal to get the order of dismissal set aside. Therefore, the order dismissing the execution petition became final and that in our opinion was a proper judicial order, the Court was competent to make by which the execution proceedings stood validly terminated.
19. None of the decisions, cited by Shri Ravindrai referred to above could of any assistance to justify the appellant’s contention pressed for acceptance in this particular case. The execution petition No. 49/62 having been finally and properly dismissed by a judicial order it could not be revived by the present execution petition. This being a fresh application for execution, it must be deemed to be barred by limitation as it is filed beyond 12 years from the date of the decree.’’
This decision certainly lays down the correct law. In the reported case also the execution application was dismissed for non-payment of process fee by a judicial order and there was no appeal against it. It was held that since application is disposed of by judicial order, it could not be revived by fresh application. The facts of the reported case and the one at hand are almost identical. Application No. 67/76 having been filed after lapse of 12 years from the last execution application, the execution was certainly barred by limitation. High Court, therefore, find that there is no substance in the review. It is accordingly dismissed.
2. The present applicant in review application is a decree-holder while the non-applicant is ajudgment-debtor. Non-applicant judgment debtor had filed Civil Revision Application No. 115 of 2006 before this court.
The said revision application came to be allowed.
The present applicant/decree-holder seeks to review that judgment in view of the fact that decree-holder was not heard. It is contended that the matter was not actually notified in the list for hearing and therefore the decree-holder's counsel could not remain present before the court and place the proper position of law before the court.
3. The facts may be narrated as follows Decree-holder Radhabai had instituted Civil Suit No.955 of 1971. There was a compromise and a compromise decree was passed on 28-2-1974. The decree was for delivery of possession and recovery of money.
Initially, two execution applications were filed - one Regular Darkhast No.280 of 1974 and second R.D. No.131 of 1976. The first application i.e. R.D. No.280174 was dismissed as infructuous and when R.D. No. 13 1/1976 was filed, the judgment debtor moved an application M.J.C. No.67176 contending that the decree could not be executed due to the provisions contained in the Debt Relief Act, 1975. The plea of the judgment-debtor was upheld by the trial court and the execution Application No.131 of 1976 was dismissed. The decree-holder/ applicant filed a revision before this court being CRA No.339/77. This revision came to be allowed on 6-9-1980. After this C.R.A. was allowed, decree-holder - Radhabai filed another execution application R.D. No.175/81. Obviously, therefore, this was filed immediately after the decision of the High court. The decreeholder did not prosecute this properly. As a result, the court passed the following order.
"Decree-holder called absent. Decreeholder's counsel filed no instructions pursis. The office objection that remained till today and no further steps has been taken by the Decree-holder, hence the execution proceeding is filed for non-compliance."
4. This order came to be passed on 15-8-1983. Thereafter, in the year 2001, the decree-holder moved an application No.46 of 2001 for revival of the execution proceedings No.131 of 1976. That was allowed by the Civil Judge and he revived the execution proceeding No.131 of 1976. It is against that order that the Civil Revision Application No.115/2006 was filed and it is the order in this revision that is now sought to be reviewed. S. Shri. Kshirsagar, learned counsel for the decree-holder/applicant, contended that the Execution Application No.131 of 1976 was rightly revived by the lower court. He contended that the execution application No.131 of 1976 was dismissed because of provisions of Debt Relief Act. He also contended that the order passed in M.J.C. No.67/76 was set aside and therefore it must be assumed that the execution application No.131 of 1976 automatically stood revived. To my mind, there was no question of revival of execution application No.131 of 1976 for two reasons.
Firstly, Application No.131/76 was dismissed, therefore unless fresh execution application was filed, there could be no question of revival of earlier execution application. Secondly, after dismissal of the first application No. 131/76, the decree-holder filed another application for execution No.175 of 1981 giving details of both earlier applications No.280 of 1974 and 131 of 1976. Therefore, by this new execution application revival of, in fact, 131/76 was sought. As far as the very first application No.280/74 is concerned, it was dismissed as wholly infructuous. Hence, when Execution Application No.175/81 was filed, it could be said that the revival of execution application No.131/76 was sought. In fact, therefore, to my mind, exec
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