The dismissal of an execution case for default does not prevent the filing of a subsequent execution case within the limitation period.

JUDGMENT :

SANJAY KUMAR DWIVEDI, J.

Heard learned counsel for the petitioners and learned counsel for the opposite party.

2. This petition has been filed under Article 227 of Constitution of India for quashing the order dated 06.05.2024 along with entire proceeding of execution case being Title Execution Case No. 03/2016 whereby the petition filed under section 47 of C.P.C. has been rejected.

3. Learned counsel for the petitioners submits that pursuant to decree passed in suit one execution case was filed being Execution Case No. 1/2007 which was dismissed for default. He submits that after five years fresh execution case being Execution Case No. 03/2016 has been filed and objection has been filed under section 47 of C.P.C. and the learned court has erroneously dismissed the said objection holding that objection petition is not maintainable. He submits that in view of above the impugned order may kindly be set aside.

4. Learned counsel for the opposite party submits that first execution case was dismissed for default and within time limit of executing the decree the second execution case was filed and only requirement is there that it must be filed within the limitation of executing the decree and that has been done and to buttress this argument, he relied in the case of “Bhagyoday Cooperative Bank Ltd. Vs. Ravindra Balkrishna Patel (deceased) (2022) Live Law (SC) 1020 wherein para 21 the Hon’ble Supreme Court has held as under”-

“The first question we have to consider is whether the dismissal of the execution petition filed by the appellant apparently on the ground of default or withdrawal of the first execution petition will result in a bar for the filing or the prosecuting of the Second execution petition. In this regard, in fact, we must notice that the learned counsel for the respondent does not seek to raise any objection as such to the contentions of the appellant that the second execution application would be maintainable provided it is within the period of limitation. We also find merit in the contentions of the appellant that the mere dismissal of the first application on the ground of default may not result in the decree holder being precluded from filing a fresh execution petition provided it is within time.”

5. Relying on the above judgment he submits that there is no illegality in the order.

6. This aspect of the matter is further well settled in another cases also. Reference may be made to the case of “Brakewell Automotive Components (India) Private Limited V. P.R. Selvam Alagappan, (2017) 5 SCC 371 . Further in the case of Bhagyoday Cooperative Bank Ltd. (supra) the Hon’ble Supreme Court has accepted the contention of the sole respondent that mere dismissal of the first execution application on the ground of default or withdrawal of the first execution application will not result a bar for the filing or the prosecuting of the second execution petition provided it is within time.

7. Admittedly, the second execution case was filed within time. There is no illegality in the order. Accordingly, this petition is dismissed. Pending I.A, if any, stands dismissed.