JUDGMENT AND ORDER :

N. Chaudhury, J.

Heard Mr. P.K. Kalita, learned counsel for the petitioners and Mr. C. Goswami, learned counsel for the opposite parties.

2. In this application under Section 115 of the Code of Civil Procedure the decree holder of Title Suit No.18/1973 of the court of learned Assistant District Judge, Tezpur has preferred this revision petition challenging the order dated 19.12.2013 whereby Title Execution Case No.7/2006 filed by the decree holder was dismissed by the learned executing court holding the same barred by limitation.

3. An ex parte decree was passed in Title Suit No.18/1973 by the learned Assistant District Judge, Tezpur on 09.09.1975 for recovery of khas possession by evicting the defendant by demolishing his structures. The defendant thereafter filed an application under Order 9, Rule 13 of the Code of Civil Procedure for setting aside of the ex parte decree and the same was registered as Misc.(J) Case No.25/1987. Incidentally, this application under Order 9, Rule 13 was dismissed for default on 03.08.1987 for which the defendant/judgment debtor filed an application under Order 9, Rule 9 of the CPC for restoration. The subsequent application appears to have been registered as Misc.(J) Case No.32/1987. Eventually, the subsequent application filed under Order 9, Rule 9 was also dismissed on 20.06.1988. This order of dismissal of application under Order 9, Rule 9 CPC was challenged in MAF No.102/1988 before this Court and the said MAF was dismissed on 05.09.1995. It is, thereafter, the decree holder filed an application for execution of the decree on 19.03.2006 and thereupon Title Execution Case No.7/2006 of the court of learned Civil Judge at Mangaldai was registered. In that execution proceeding the decree holder also filed an application under Section 5 of the Limitation Act explaining the delay and prayed for condoning the delay, if any, in instituting the execution proceeding. The opposite party/judgment debtor contested the condonation petition by filing objection, inter alia, on the ground that the execution petition was time barred and that no application under Section 5 of the Limitation Act is maintainable in an execution proceeding.

4. The learned executing court after hearing both sides passed the impugned order dated 19.12.2013 holding that Section 5 of the Limitation Act does not extend to execution proceeding and so there was no question of condoning delay if already occasioned. Holding that there was no stay order during pendency of proceeding under Order 9, Rule 13 or under Order 9, Rule 9 and so order under Order 43, Rule 1 (c) of the CPC the learned trial court was of the view that in the absence of a stay order the decree could have been put into execution within the period of limitation i.e. within 12 years from the date of passing of the decree. The same not having been done the execution became time barred.

5. Mr. P.K. Kalita, learned counsel for the petitioners, strenuously urged that because of pendency of the proceedings under Order 9, Rule 13 and Order 9, Rule 9 of the CPC and subsequent pendency of the appeal arising therefrom there was no question of putting the decree into execution and so the decree holder did not commit any error in instituting the execution case in the year 2006.

6. Per contra, Mr. C. Goswami, learned counsel for the opposite parties, would argue that mere pendency of the appeal or other proceeding does not result in stay of a decree unless the same is specifically stayed by the appellate court. Calling attention of this Court to the Order 41, Rule 5 of the CPC Mr. Goswami would argue that there was no stay order either by the trial court during pendency of the proceeding under Order 9, Rule 13 or Order 9, Rule 9 or by the High Court in MAF No.102/1988 and so the decree holder could have put the decree into execution within the statutory period of 12 years. The same not having been done, the decree had become inoperative.

7. Having heard the learned cou

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