AI Structured Summary
Not yet generated for this judgment
Judgment
Gautam Kumar Choudhary, J
Petitioner is the son of decree holder and the instant civil miscellaneous petition has been filed for quashing the order dated 24.07.2018 by which execution proceeding has been dismissed for default by learned Civil Judge (Sr. Division) 1st Dhanbad in connection with Execution Case No.46 of 2011.
It is submitted by learned counsel on behalf of petitioner that the execution case arises out of HRC Case No.3 of 2002 which was disposed of in favour of father of the petitioner by order dated 16.09.2002 in which the rent was fixed. Despite the enhancement of rent, it is contended that the payment was not made. Consequently, the execution proceeding was initiated under Section 23 of Bihar Buildings (Least, Rent & Eviction) Control Act, 1982 in the Court of learned Civil Judge (Sr. Division) 1st Dhanbad. During the pendency of the execution proceeding, the decree holder died and later unfortunately, the counsel appearing on behalf of the decree holder also died on 21.07.2018 consequently, the case was dismissed on 24.07.2018. This order of dismissal of execution case for default, is under challenge before this Court.
It is submitted by learned counsel on behalf of petitioner that there is no provision as such of substitution in execution case in view of Order XXII Rule 12 of the CPC. Instead of executing the decree, the learned executing Court erred in dismissing the execution case for default.
Learned counsel appearing on behalf of judgment debtor submits that restoration application has been filed after inordinate delay.
Having considered the submissions advanced on behalf of both sides, it is apparent that the original decree holder died and following him conducting counsel had also died and as the case went unrepresented before learned executing Court, it was dismissed for default in terms of Order IX Rule 8 of the CPC.
This Court is of the view that execution is continuation of the suit and once a decree is passed, the right to execute becomes a matter of enforcement and not of initiating a new cause of action. The executing Court’s duty is to enforce the decree and not to adjudicate fresh rights dependent on appearance. There is no express provision in CPC empowering the executing Court to dismiss an execution application for default of appearance of the decree holder. Order XXI of the CPC governs execution proceedings, and unlike Order IX, there is no corresponding Rule authorizing dismissal for default in execution case. But even if it is dismissed for default, in view of law laid down by the Hon’ble Supreme Court in Shivshankar Prasad Shah & Others Vs. Baikunth Nath Singh & Others reported in (1969) 1 SCC 718, the second petition was maintainable and that dismissal of earlier execution petition on the ground of default, will not bar the filing of fresh execution as long as the second petition is within the period of limitation. [See Bhagyoday Co-operative Bank Ltd. Vs. Ravindra Balkrishna Patel, (2022) 14 SCC 417.
Civil Miscellaneous Petition is allowed. Pending Interlocutory Application, if any, is disposed of.