A subsequent execution case is maintainable after dismissal of a prior execution petition for default, provided it is filed within the limitation period.

JUDGMENT :

SANJAY KUMAR DWIVEDI, J.

It has been pointed out that so far as Opposite Party No.2 is concerned he is performa-Opposite Party.

2. Heard Mr. Amit Kumar Das, the learned counsel appearing on behalf of the petitioner as well as Mr. Shashank Shekhar, the learned counsel appearing on behalf of the Opposite Party No.1.

3. This petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 23.07.2024 passed by learned Additional Civil Judge, Jr. Division, Ranchi in Execution Case No.04 of 2020 whereby the objection filed by the petitioner under Section 47 of the CPC has been rejected.

4. Mr. Amit Kumar Das, the learned counsel appearing on behalf of the petitioner submits that the Opposite Party no.1 had initially instituted a civil suit for eviction of the petitioner being Eviction (Title) Suit No.52 of 2016 and by the judgment dated 23.04.2014 passed by learned Additional Munsif-II, Ranchi, the said suit was decreed in favour of the O.P.No.1. He further submits that aggrieved with the said judgment, the petitioner has moved in Civil Revision No.16 of 2014 in which the trial court records were called for on 30.11.2018 and the said civil revision was admitted by the order dated 07.03.2019 and the said revision application is still pending for final hearing. He then submits that the O.P.No.1 has initially filed the Execution Case No.13 of 2014 in which the petitioner has appeared and ultimately the said execution case was dismissed by order dated 17.08.2016 due to non-prosecution by the Opposite party. He submits that the Opposite party has filed restoration petition for restoring the said execution case which was further dismissed for non-prosecution by order dated 12.06.2018. He further submits that thereafter fresh Execution Case No.4 of 2020 was filed in which objection was made under section 47 which has been rejected by the learned court on the ground that it is not maintainable. He submits that once O.P.No.1 has chosen to file the restoration petition which was dismissed, he has got no right to file the second execution case and to buttress his argument, he relied in the case of Sudama Ram v. The State of Jharkhand and Others , 2012 SCC OnLine Jhar 859 . Relying on the above judgment, he submits that the impugned order may kindly be set aside. On query by the Court, with regard to remedy, he submits that now the O.P.No.1 is required to file fresh suit. On this ground, he submits that the order may kindly be set aside.

5. Per contra, Mr. Shashank Shekhar, the learned counsel appearing on behalf of the O.P.No.1 draws the attention of the Court to Order IX Rule 4 of CPC and submits that it is open to file a fresh suit for execution in light of that provision and only limitation is that it may be within the limitation period. He submits that the learned Court has rightly passed the said order and there is no illegality. He further draws the attention of the Court to section 141 CPC and submits that execution case also comes under the parameteria of the suit. To buttress his argument, he firstly relied in the case of Brakewell Automotive Components (India) Private Limited v. P.R. Selvam Alagappan, (2017) 5 SCC 371, paragraph nos.22 and 23 of the said judgment is quoted below:

“22. Judicial precedents to the effect that the purview of scrutiny under Section 47 of the Code qua a decree is limited to objections to its executability on the ground of jurisdictional infirmity or voidness are plethoric. This Court, amongst others in Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman [Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman, (1970) 1 SCC 670 : AIR 1970 SC 1475 : (1971) 1 SCR 66] in essence enunciated that only a decree which is a nullity can be the subject-matter of objection under Section 47 of the Code and not one which is erroneous either in law or on facts. The following extract from this decision seems apt : (SCC pp. 672-73, paras 6-7)

“6. A court executing a decree cannot go behin