The dismissal of an execution application in default does not bar the filing of a fresh execution application within the period of limitation, and the provisions of Order 9 Rule 9 C. P. C. cannot be extended to preclude the plaintiff from bringing a fresh suit in the context of execution of a decree when the rights stand settled.

1. The challenge in the present petition is to the order passed by the learned Executing Court on 19.4.2001, holding that the execution petition is liable to be dismissed, as the petitioner has failed to seek restoration of the earlier execution application, dismissed in default on 17.1.1991.

2. The plaintiffs suit for possession of 6 kanal 5 marlas of land, was decreed on 13.11.1981. The first appeal was dismissed on 19.3.1994 and the second appeals by this Court on 24.7.1984. An application for execution of the said judgment and decree was filed on September 26/october 13, 1984. The judgment debtor filed objections but the execution application was dismissed in default on 17.1.1991. The petitioner sought execution of the decree by filing a fresh execution petition on 25.12.1995. The learned trial Court relied upon a judgment reported as Chander Bhan Singh V/s. III Additional Judge, Gonda and Ors.1996 (1) Civil Court Cases 44, to hold that the remedy of the petitioner was to seek restoration of his execution application and not to file a fresh execution petition. Thus, the execution was dismissed.

3. The question which arises for consideration in this petition whether execution application is maintainable in the circumstances though it is within the period of limitation contemplated under Article 136 of the Limitation Act or the remedy with the petitioner was to seek restoration of the execution application dismissed in default.

4. Learned Counsel appearing for the petitioner has relied upon Shivshankar Prasad Sah and Anr. V/s. Baikunth Nath Singh and Ors. , Ajit Kaur V/s. Mandir Jhok Hari Har and Ors. (1988-2)119 P. L. R.636 and State of Punjab V/s. Tara Chand 1989 (1) Revenue Law Reporter 37, to contend that the provisions of the Code of Civil Procedure do not bar the filing of successive execution application within the period of limitation and the order of dismissal of default does not bar the filing of the fresh execution application.

5. On the other hard, learned Counsel for the respondents relies upon a Supreme Court judgment reported as Damodar Pillai and Ors. V/s. South Indian Bank Ltd. (2006-1) 142 P. L. R.30, to contend that the application for restoration of the execution application could be filed only within 30 days and that the Court cannot condone delay in exercise of inherent powers as Sec.5 of the Limitation Act, 1963 is not applicable in the proceedings arising Under Order 21 of the C. P. C.

6. In Shivshankar Prasads case (supra), it has been held by the Honble Supreme Court that an order vide which the execution was dismissed in default is not a final decision of the Court after hearing the parties, and therefore, does not operate as res judicata. It was held to the following effect: The Courts in India have generally taken the view that an execution petition which has been dismissed for the default of the decree-holder though by the time that petition came to be dismissed, the judgment-debtor had resisted the execution on one or more grounds, does not bar the further execution of the decree in pursuance of fresh execution petitions filed in accordance with law - see Lakshmibai Amant Kondkar V/s. Ravji Bhikaji Kondkar 31 Bom. L. R.400 : A. I. R.1929 Bom.217. Even the dismissal for default of objections raised Under Sec.47, Civil Procedure Code does not operate as resjudicata when the same objections are raised again in the course of the execution - see Bahir Das Pal V/s. Girish Chandra Pal A. I. R.1923 Cl.287 ; Bhagwati Prasad Sah V/s. Radha Kishun Sah Jethmal V/s. Mst. Sakina ; Bishwanath Kundu V/s. Smt. Subala Dassi, We do not think that the decision in Ramnarain V/s. Basudeo I. L. R.25 Pat 595 : A. I. R.1947 Pat 298 on which the learned Counsel for the appellant placed great deal of reliance is correctly decided. Hence we agree with the High Court that the plea of res judicata advanced by the appellant is unsustainable.

7. The judgment referred to by the learned Counsel for the respondents is no