.1 File an application before the court to restore the earlier EP only you have to give an affidavit citing reason of non appearance and pray before court for restoration of EP.
EP restoration vs fresh EP application
I am decree holder with regard to eviction of occupant and delivery of property to me. Lower court gave decree on 10 Oct 2015 in my favour for possession of property. Immediately I filed for EP for execution of decree. In the meantime JDR filed for appeal in District Court and appeal was allowed and EP stayed for some time period based on petition of JDR requesting for stay of EP based on the reason that appeal is pending in the Appellant Court. Now Appeal case is in dormant stage (i.e. not come before the Appellant court bench as lower court record is still awaited). After sometime, EP stay was vacated, as petition for extension of EP stay was not filed by JDR on time. EP court asked my lawyer to file Execution application as stay was vacated. As I (DHR) did'nt respond with Execution Application through my lawyer even after several chances (in the form of adjournments), EP was dismissed. Now what should be my next course of action. Should I file for restoration of EP or should I file for fresh EP application at a later date since it will take a lot of time for the disposal of the Appeal case in Appellant Court.
Asked 4 years ago in Property Law
Religion: Hindu
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14 Answers
you can File application for restoration of EP however please note that during pendency of appeal no execution of decree is maintainable
The EP filed was only for recovery of possession of schedule property, reserving my right to file another EP for recovery of amounts due from JDR as per the decree. Within what time period should I file another EP for recovery of amounts due from the JDR as per the decree. Decree date is 10 October 2015. JDR successfully filed for Appeal in Appellant court but the appeal has not come up on to the bench of appellant court as lower court record is awaited. Should I go for fresh EP for recovery of the amounts to be recovered from JDR as per the decree along with recovery of possession of Schedule property.
Asked 4 years ago
Wait for appeal to be disposed of
during pendency of appeal no execution proceedings are maintainable
- Since , the EP stay was already vacated , then without any further delay , you should to file an Execution petition for executing the said decree.
- However, now you can file an applicaton for restoration of the EP , with a satisfied reasons for delaying the same.
- For recovery of amount , also you have right to file EP , because Appeal has been admited but stay not granted against the execution proceeding.
An application under order 21 Rule 105 and 106 to be filed within 30 days of the dismissal of the EP to restore the EP.
There is no question of preferring an appeal against this, you can file a petition to restore the petition.
You can file for restoration as it's dismissed for default it will be restored
The period of limitation for an application for the execution of any decree (other than a decree granting a mandatory injunction) or order of any Civil Court is twelve years and the time of limitation starts to run from the date when the decree or order becomes enforceable or where the decree or any subsequent order .
If there is no stay granted by the appellate court against the operation of the decree of the lower couirt then you can file the EP
Yes you should restore your EP and amend same seeking relief of recovery of amount also.
The EP was dismissed because of non prosecution. Therefore it can be restored.
You should file for restoration of the EP and also file a reply in the appeal and an application for an early disposal.
Rule 105(2) of Order 21 of CPC
contains the provision relating to
dismissal of the execution application
for default by laying down that where on
the day fixed or on any other day to
which the hearing may be adjourned the
applicant does not appear when the
case is called on for hearing, the Court
may make an order that the application
be dismissed.
Rule 106(1) provides that the applicant,
against whom an order is made under
sub-rule (2) of Rule 105, may apply to
the Court to set aside the order, and if
he satisfies the Court that there was
sufficient cause for his non-appearance
when the application was called on for
hearing, the Court shall set aside the
order on such terms as to costs or
otherwise as it thinks fit, and shall
appoint a day for the further hearing of
the application.
Rule 106(3) provides that an application
under sub-rule 106(1) shall be made
within 30 days from the date of the
order, or where, in the case of an ex
parte order, the notice was not duly
served, within thirty days from the date
when the applicant had knowledge of
the order.
The execution petition shall be filed in the same court which passed the judgement and decree in your favour
EP have to file within 12 years of decree and for enforcement of single order 2 executions petition are not maintainable.
Amend same EP and include relief for recover of amount.
You should make application for restoration of Execution petition in the court which dismissed your petition.
For execution petition the limitation period is 10 year from the date of decree.