The execution of an ex parte decree is not barred by limitation if the decree has merged with a revisional order, resetting the limitation period for enforcement.

JUDGMENT :

Heard learned counsel for the petitioner and learned counsel for the respondent.

2. In this case, the petitioner has challenged the order dated 16.12.2019 passed by the learned Munsif, Hilsa in Execution Case No.01 of 2018, by which the objection petition dated 06.04.2019 filed by the petitioner opposing the maintainability of the said execution case, has been dismissed.

3. It is the case of the petitioner that the respondent herein filed a suit for specific performance of contract in the Court of learned Munsif, Hilsa on 18.02.1994 against one Sheo Nandan Matho (defendant no.1 therein) which was registered as Title Suit No.14 of 1994. In the said suit, the present petitioner was also made as defendant No.2 as he was the subsequent purchaser. In the aforesaid suit, it was alleged that the defendant no.1 had executed a sale deed on 20.01.1993 in favour of the respondent but later failed to appear before the registering authority for admission of execution of the said sale deed. Therefore, the respondent-plaintiff had made a prayer in the suit to direct the defendant no.1 to appear before the registering authority and to admit the execution of sale deed or in alternative pass a decree for specific performance of contract. According to the petitioner, the respondent-plaintiff got the summons served upon the defendants fraudulently by suppressing the service of summons. As a result of which, the said suit was decreed ex parte on 09.01.1998 against the defendants. The defendant no.1 had challenged the ex parte decree by filing a petition under Order IX Rule 13 of the Civil Procedure Code, which was registered as Miscellaneous Case No.13 of 1998 but the same was dismissed vide order dated 27.08.1999. The defendants thereafter challenged the said order in Miscellaneous Appeal No.23 of 1999 before the learned District Judge, which also came to be dismissed. Against the aforesaid order, the defendants then preferred Civil Revision Nos.2189 of 2000 and 2196 of 2000 before this Court, which were also dismissed vide a common order dated 31.08.2006. Thereafter, Sheo Nandan Mahto, original defendant no.1, passed away in the year 2007 leaving behind his widow Shyampati Devi, who also died in the year 2015.

4. The respondent-plaintiff filed a petition on 22.03.2016 in the said disposed of suit praying that the legal heirs of original judgment debtor be directed to admit the execution of the sale deed dated 20.01.1993. The defendant no.2 (petitioner) filed an objection in the said disposed of suit on 22.06.2016 objecting the maintainability of the petition dated 22.03.2016 filed by the respondent-plaintiff on various grounds. After hearing both the parties, the learned Munsif vide order dated 21.04.2017 disposed of the petition dated 22.03.2016 with an observation that the respondent-plaintiff should have filed execution case for the execution of the ex parte decree. Against the said order dated 21.04.2017, the respondent-plaintiff filed Civil Miscellaneous No.1034 of 2017 before this Court which was dismissed by a coordinate Bench of this Court vide order dated 05.10.2018 holding that the only way out to get the judgment and decree executed is to file an execution case. Thereafter, the respondent-plaintiff filed Execution Case No.01 of 2018 for execution of the ex parte judgment and decree dated 09.01.1998. In the said execution case, the respondent-plaintiff also filed a petition under Order XXI Rule 54 of the Code of Civil Procedure for attachment of the schedule-1 property. The defendant no.2 (petitioner) filed an objection petition dated 06.04.2019 opposing the maintainability of the execution case preferred by the respondent-plaintiff on several counts. However, the learned Munsif vide impugned order dated 16.12.2019 rejected the said objection petition dated 06.04.2019 filed by the petitioner-defendant no.2.

5. Learned counsel for the petitioner has submitted that the learned Munsif after relying on the judgment of the Full Bench