Nitin Uppal vs Suman Sethi on 11 February, 2011

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Punjab-Haryana High Court

Nitin Uppal vs Suman Sethi on 11 February, 2011

Bench: M.M.S. Bedi

C.R. No. 1006 of 2011 (O&M)                                            [1]




        IN THE HIGH COURT OF PUNJAB AND HARYANA AT

                                CHANDIGARH.

                                 C.R. No. 1006 of 2011 (O&M)

                                 Date of Decision: February 11, 2011



Nitin Uppal

                                      .....Petitioner

              Vs.

Suman Sethi

                                      .....Respondent


CORAM:        HON'BLE MR. JUSTICE M.M.S. BEDI.

                          -.-

Present:-     Mr.Sanjay Jain, Advocate
              for the petitioner.

                    -.-



M.M.S. BEDI, J. (ORAL)

This petition has been preferred against the order dated December 8, 2010 dismissing the application for restoration of the execution proceedings on the ground that the application for restoration of execution proceedings was allowed subject to payment of ` 500/- as costs vide order dated March 6, 2010 but on account of petitioner/ decree-holder having not deposited the cost, the same deserved to be dismissed again. The Executing Court has observed that the order dated January 6, 2010 restoring C.R. No. 1006 of 2011 (O&M) [2] the execution application subject to payment of costs had not been challenged in revision and had attained finality as such the application for restoration deserves dismissal does not seem to be an appropriate because a decree holder is entitled to file a second application for execution subject to the period of limitation prescribed under law. There is no bar for a decree holder to file a fresh application for execution in case the earlier has been dismissed without adjudication on merits. The order dated December 8, 2010 is a valid order but the reasoning adopted for passing the said order is not appropriate. It is pertinent to observe here that it is not apparent from the record whether the judgment debtor has been served for March 6, 2010 or for December 8, 2010 when the application for restoration of the execution application was dismissed. It is not understood as to who was to be paid the cost of ` 500/-, when the judgment debtor- respondent was not present before the Court.

Without expression of any opinion on merits and without observing whether this revision petition is maintainable, in the interest of justice, this petition is disposed of with a direction that in case the petitioner files a fresh application for execution, the same will be entertained irrespective of his earlier application having been dismissed. It will be open to the petitioner to offer the cost of ` 1000/- and deposit the same with the Court and get the application for execution restored. Giving these two options to the petitioner, this petition is disposed of.

February 11, 2011                                     (M.M.S.BEDI)
 sanjay                                                 JUDGE

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