ITEM NO.   34                 COURT NO.4               SECTION IVB

           S U P R E M E   C O U R T   O F   I N D I A                          RECORD OF PROCEEDINGS                      Petition(s) for Special Leave to Appeal (Civil) No(s).23413/2005

(From the judgement and order dated 21/07/2005 in  CR No. 3694/2005  of The HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH)

RAM JI DASS (D) BY LRS.                              Petitioner(s)

                     VERSUS

INDIAN OVERSEAS BANK                                 Respondent(s) (With prayer for interim relief and office report)

Date: 28/11/2008  This Petition was called on for hearing today.

CORAM :         HON'BLE MR. JUSTICE S.B. SINHA         HON'BLE MR. JUSTICE CYRIAC JOSEPH

For Petitioner(s)   Mr. H.C. Mittal,Adv.                          Dr. Kailash Chand,Adv.

For Respondent(s)   Mr. K.N. Balgopal, Sr.Adv.   Mr. A.P. Mukundan, Adv.   Mr.Rituraj Biswas, Adv.

                        Mr. Devendra Singh,Adv.

          UPON hearing counsel the Court made the following                                O R D E R  

Leave granted.

The appeal is dismissed in terms of the signed order.

    [ Meenu Sethi ]               [ Pushap Lata Bhardwaj ]       A.R.-cum -P.S.             Court Master

Signed order is placed on the file

               IN THE SUPREME COURT OF INDIA CIVIL  APPELLATE JURISDICTION

CIVIL APPEAL NO.7090  OF 2008 (Arising out of S.L.P. (C) No.23413/2005)

    Ram Ji Das(dead) by Lrs.  ...Appellants

Versus

    Indian Overseas Bank      ...Respondent                          O  R  D  E  R

Leave granted.

This appeal is directed against the judgment and order dated

21.7.2005 passed by a learned Single Judge of the Punjab and Haryana High Court in

Civil Revision No. 3694 of 2005 whereby and whereunder the objection petition filed

by  the  appellant  herein  under  Section  47  of  the  Code  of  Civil  Procedure  was

dismissed.

The basic fact of the matter is not in dispute.

A  decree  for  recovery  of   money  was  passed   against  the

appellant and in favour of the decree holder-respondent on 5.9.1987. An application

for execution of the said decree was filed on 10.4.1997. On the respondent's failure to

take  steps,  the  said  Execution  Petition  was  dismissed  for  default  on  11.3.2000.

Respondent herein filed a second execution application on 27.4.2000  but  together

therewith it also filed an application for summoning of the original file as also the

execution file for the purpose of

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directing recovery of the amount by sale of the mortgaged land, inter alia, stating:

" 3. That the execution petition was fixed      for the report of the Tehsildar after               sale of the mortgaged land.

 4.  That the absence of the counsel for the          petitioner/decree holder was not       intentional.

It is therefore, prayed that this Ld. Court be pleased to summon the previous file and the proceedings from the stage it was dismissed be started i.e. the property mortgaged be put to sale  and the amount standing due from the JDs be recovered in accordance with the decree."

  By reason of  an order  dated 6.10.2001,  the  learned executing Court

allowed the said application opining :

" By filing the present application, it is prayed that the proceedings from this stage be taken where it was dismissed i.e. property mortgaged be put to sale and the amount standing due from the J.Ds. is recovered.

 I have heard the arguments advanced by the counsel for the decree holder and perused the case file very carefully.

 From the perusal of the file, it is observed that the execution petition was dismissed on 11.3.2000 and the application was moved on 7.4.2000. In the interest of justice, the application in question stands allowed and proceedings be taken from the stage where it was dismissed i.e. the property be mortgaged be put to sale and the amount standing due to the J.Ds. be recovered."

As noticed  hereinbefore,  the  revision  application  filed  thereagainst  was

dismissed.

Learned counsel appearing on behalf of the appellants would urge that the

second  execution  application  was  not  maintainable  being  barred  by  limitation.

Although, the  

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learned counsel is right that the second execution application of its own would not

have  been  maintainable   being  barred by  limitation  as  the  decree  was  passed  on

5.9.1987 and the said application was filed on 27.4.2000, but as it is evident that the

respondent had also for all intent and purport filed an application for recalling of the

said order dated 11.3.2000  and the learned executing Court having allowed the same,

we are of the opinion that the first execution  application having been revived, the

execution case must proceed in accordance with law.

With  the  aforesaid  observations,  the  appeal  is  dismissed.  No

costs.

......................J.       [S.B. SINHA]

.....................J                                       [ CYRIAC JOSEPH ]

New Delhi, November 28, 2008.

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