Applications under Section 47 CPC are governed by Article 137 of the Limitation Act, establishing a three-year limitation from the judgment-debtor's appearance in execution proceedings.

JUDGEMENT :

K.R. MOHAPATRA, J.

1. This matter is taken up through hybrid mode.

2. The CMP is listed today for consideration of IA No.368 of 2024 filed with a prayer for extension of interim order dated 26 th October, 2022 passed in IA No.1123 of 2022.

3. In course of hearing of the IA, this Court finds that merit of the case has to be gone into. Hence, on consent of learned counsel for the parties, the CMP is taken up for final disposal.

4. This CMP has been filed assailing order dated 30th September, 2022 (Annexure-5) passed by learned Civil Judge (Junior Division), Gondia, Dhenkanal in CMA No.10 of 2022 (arising out of CMA No.8 of 2009), whereby an application to restore CMA No.8 of 2009 filed under Section 47 CPC has been rejected.

5. Mr. Rout, learned counsel for the Petitioners submits that TS No.33 of 1988 was filed by Plaintiffs for declaration of joint title and confirmation of possession of the Plaintiffs-Opposite Parties over the suit land in Plot No.1443 and for permanent injunction against the Defendants restraining them from constructing any wall or construction over any part of the said plot and from disturbing the very passage of the Plaintiffs over the said Plot No.1443 under Khata No.13 measuring an area Ac.0.08 decimal in village Joranda in the district of Dhenkanal. Vide Judgement dated 31st July, 1990, the suit was decreed with the following order:-

“That the suit be and the same is decreed on contest against the defendants with the cost. No order is passed regarding declaration of joint title and confirmation of possession of the plaintiffs over Plot No.1443 as it is already decided by the Hon’ble High Court. The defendants are restrained from constructing any wall or any structure on any part of plot No.1443 and also injuncted not to obstruct the free passage of the plaintiffs to plot No.1443 and are directed to remove the existing wall at its northern side.”

The Defendants unsuccessfully challenged the decree in appeal. Thereafter, Plaintiffs filed Execution Case No.3 of 2001 alleging that the Defendants have constructed a wall over Plot No.1443 and obstructed passage of the Plaintiffs/Opposite Parties. Defendants/JDrs. appeared and filed an application in CMA No.8 of 2009 under Section 47 CPC . In the meantime, JDr. Nos.1 and 2 died and JDr. No.3 renounced the world, as a result of which, CMA No.8 of 2009 was dismissed being not moved. Thereafter, the DHrs./Opposite Parties took steps for substitution of the deceased JDrs. Petitioners being substituted came to know that application under filed by their predecessors had already been dismissed for default of the JDrs. Hence, an application in CMA No.10 of 2022 was filed for restoration of CMA No.8 of 2009. Learned executing Court dismissed the said application holding that CMA No.8 of 2009 filed under was grossly time barred. Hence, no fruitful purpose will be served by restoring the same after a lapse of so many years.

5.1 Mr. Rout, learned counsel for the Petitioners further submits that Article 137 of the Limitation Act is not applicable to a proceeding under Section 47 CPC , as observed by learned executing Court. There is no provision either in or in the Limitation Act prescribing time limit for filing of an application under . The petition under in CMA No.8 of 2009 was dismissed for default, which was beyond the control of the Petitioners. Thus, the Petitioners who have stepped into the shoes of JDrs. should not be prevented from raising an objection with regard to executability of the decree. The scope of is very wide and all the issues which could have been raised by filing a separate suit can be raised in a petition