Jharkhand High Court
Mostt. Kiran Devi vs Rajmani Devi on 24 January, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No. 565 of 2024
1. Mostt. Kiran Devi, aged about 54 years, wife of late Ajoy Kr. Singh
2. Prasant Kumar @ Prashant Kumar @ Basant Kumar, aged about 28
years, son of late Ajoy Kr. Singh
3. Pragya @ Parag Kumari, aged about 26 years, daughter of late Ajoy Kr.
Singh
4. Bijay Kumar Singh @ Vijay Kumar Singh aged about 55 years, son of
late Ram Saroop Singh
5. Mritunjay Kumar Singh, aged abut 53 years, son of late Ramsaroop
Singh
All residents of Sakrogarh, P.O. and P.S. Sahibganj (Town) District-
Sahibganj, Jharkhand
......................Petitioners
... Versus....
Rajmani Devi, wife of late Balram Singh, resident of Sakrogarh, P.O. and
P.S. Sahibganj, District-Sahibganj
...... Opposite Party
CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
For the Petitioners : Md. Nasim Akhtar, Advocate
For the Opp. Party : Mr. Ashish Gautam, Advocate
..........
05/Dated: 24/01/2025
Heard learned counsel for the petitioners and learned counsel for
the opposite party.
2. This petition has been filed under Article 227 of Constitution of
India for quashing the order dated 06.05.2024 along with entire proceeding of
execution case being Title Execution Case No. 03/2016 whereby the petition
filed under section 47 of C.P.C. has been rejected.
3. Learned counsel for the petitioners submits that pursuant to
decree passed in suit one execution case was filed being Execution Case No.
1/2007 which was dismissed for default. He submits that after five years fresh
execution case being Execution Case No. 03/2016 has been filed and objection
has been filed under section 47 of C.P.C. and the learned court has erroneously
dismissed the said objection holding that objection petition is not maintainable.
He submits that in view of above the impugned order may kindly be set aside.
4. Learned counsel for the opposite party submits that first execution
case was dismissed for default and within time limit of executing the decree
the second execution case was filed and only requirement is there that it must
be filed within the limitation of executing the decree and that has been done
and to buttress this argument, he relied in the case of " Bhagyoday
Cooperative Bank Ltd. Vs. Ravindra Balkrishna Patel (deceased)
(2022) Live Law (SC) 1020 wherein para 21 the Hon'ble Supreme Court has
held as under"-
"The first question we have to consider is whether the dismissal
of the execution petition filed by the appellant apparently on the ground of
default or withdrawal of the first execution petition will result in a bar for the
filing or the prosecuting of the Second execution petition. In this regard, in
fact, we must notice that the learned counsel for the respondent does not
seek to raise any objection as such to the contentions of the appellant that
the second execution application would be maintainable provided it is within
the period of limitation. We also find merit in the contentions of the
appellant that the mere dismissal of the first application on the ground of
default may not result in the decree holder being precluded from filing a
fresh execution petition provided it is within time."
5. Relying on the above judgment he submits that there is no
illegality in the order.
6. This aspect of the matter is further well settled in another cases
also. Reference may be made to the case of "Brakewell Automotive
Components (India) Private Limited V. P.R. Selvam Alagappan, (2017)
5 SCC 371 . Further in the case of Bhagyoday Cooperative Bank Ltd.
(supra) the Hon'ble Supreme Court has accepted the contention of the sole
respondent that mere dismissal of the first execution application on the ground
of default or withdrawal of the first execution application will not result a bar
for the filing or the prosecuting of the second execution petition provided it is
within time.
7. Admittedly, the second execution case was filed within time.
There is no illegality in the order. Accordingly, this petition is dismissed.
Pending I.A, if any, stands dismissed.
( Sanjay Kumar Dwivedi, J.)
Satyarthi/-
