Hon’ble Pankaj Mithal, J.—Heard Sri Pankaj Rai holding brief of learned counsel appearing for the petitioners.

This writ petition arises out of execution of a decree for specific performance of an agreement to sell. Petitioners objections to the execution have been dismissed by the impugned order dated 4.9.2012 which has been upheld by the revisional Court vide judgment and order dated 11.12.2012.

2. In impugning the above orders, three arguments have been advanced by Sri Pankaj Rai.

The first and the foremost argument is that an earlier application for execution was dismissed in default on 30.4.2010 and, therefore, afresh application was not maintainable.

There is no dispute that the earlier application was dismissed in default without going into its merits. The subsequent application for execution was within time. The dismissal of the first execution application in default without adjudicating any rights of the parties would not operate as res judicata.

3. Merely for the reason that the decree holder has a remedy to seek recall of the order dismissing execution in default under Rule 106 of Order 21 C.P.C. does not mean that he has no right to apply afresh if time permits.