Allahabad High Court
Balvindar Singh vs Ivth Additional District And Sessions ... on 11 September, 2019
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved AFR Court No. - 18 Case :- MATTERS UNDER ARTICLE 227 No. - 3276 of 2019 Petitioner :- Balvindar Singh Respondent :- Ivth Additional District And Sessions Judge/Special Judge And 2 Others Counsel for Petitioner :- Rishu Mishra,Uma Kant Mishra Counsel for Respondent :- Anadi Krishna Narayana,Sunil Kumar Mishra,Sunil Kumar Misra Hon'ble J.J. Munir,J.
1. This petition under Article 227 of the Constitution has been brought by a decree holder to set aside an order passed by the IVth Additional District and Sessions Judge/Special Judge (E.C. Act), Bulandshahar dated 16.04.2010, in Execution Case No. 20 of 2004, dismissing the petitioner's Execution Application in his absence, though expressly not saying that the dismissal is in default. Further challenge is laid to an order dated 23.01.2019, passed by the Court aforesaid, rejecting an application under Section 5 of the Limitation Act, filed in aid of an application under Order IX Rule 4 read with Order XXI Rule 106 and Section 151 C.P.C. seeking to set aside the order dated 16.04.2010, dismissing the Execution Application in default of the decree holder.
2. Heard Sri Uma Kant Mishra, learned counsel for the petitioner and Sri Sunil Kumar Mishra, learned counsel appearing on behalf of respondent Nos. 2 and 3.
3. The question that falls for consideration in this petition is: whether an Execution Application dismissed in default on a day when it is not set down for hearing but for orders or some other proceeding, can be restored with aid of Section 5 of the Limitation Act, through an application made for the purpose, beyond the non condonable limitation of 30 days prescribed under Order XXI Rule 106(3) Code of Civil Procedure?
4. The issue has come up in the context of proceedings arising from two references made to the District Judge of Bulandshahar under Section 18 of the Land Acquisition Act, 1894 (for short, 'the Act'). The references aforesaid were a sequel to acquisition of certain land of the petitioner comprising Khasra No. 875/1 of Khata No. 206, admeasuring 2 Bigha and Khasra Nos. 874/2 and 875/3 both part of Khata No. 206, admeasuring a total of 7 Bigha 10 Biswa, located in the erstwhile village of Kasna, Pargana Dankaur, District Bulandshahar, and now falling in the district of Gautam Buddh Nagar. The aforesaid land is hereinafter referred to as the 'land in dispute'. The land in dispute was acquired by the State through a Notification under Section 4(1) of the Act, dated 03.03.1989, followed by a declaration under Section 6(1), dated 31.03.1989. Possession of this land appears to have been taken by the State on 03.07.1990 and an Award of compensation was made by the Special Land Acquisition Officer, Bulandshahar on 26.11.1990. The Special Land Acquisition Officer awarded compensation at four different rates per Bhigha of acquired land, according to four different classes of land, that comprised the land in dispute.
5. Aggrieved by the Award of the Special Land Acquisition Officer, the petitioner moved him to make a reference to the District Judge under Section 18 of the Act. Two separate references were made by the Special Land Acquisition Officer, one relating to Khasra No. 1875/1 and the other relating to Khasra No. 874/2 and 875/3; the first of the two references was numbered on the file of the learned District Judge as LAR No. 103/1992, and the second as LAR No. 511/1992. Both references were transferred and assigned to the Additional District Judge, Court No. 2, Bulandshahar before whom these came up for determination on 17.12.2003.
6. Both references were heard together and decided by a common judgment and award of the date last mentioned, whereby both references were accepted. The references were accepted in terms that determining the land in dispute to be industrial in nature on the date of acquisition, compensation that was awarded by the Special Land Acquisition Officer @ of quantification per Bigha, the learned Judge determined it @ Rs. 65 per square yard. It was also awarded that the compensation payable shall carry interest from the date of Notification under Section 4(1) to the date of transfer of possession @ 12% per annum. It was also ordered that on the enhanced compensation worked out in terms of the award of the Reference Court, statutory entitlement of solatium @ 30% would be worked out. It was further ordered that on the entire enhanced amount of compensation, including solatium added to it from the date of taking over possession until one year afterwards, the decree holder would be entitled to 9% per annum in interest and, thereafter, on the entire sum of compensation interest would be payable @ 15 % per annum.
7. From the judgment and award of the Additional District Judge in LAR No. 103/1992 a First Appeal was carried to this Court by respondent no. 3, that is to say, the U.P.S.I.D.C. Ghaziabad, who are the beneficiaries of the acquisition. The aforesaid Appeal was a defective appeal and was numbered as First Appeal No. 580 (Defective) of 2004. The said Appeal was dismissed vide an order dated 24.07.2006.
8. It is the petitioner's case that during the aforesaid period of time, the petitioner filed for execution of the awards passed by the Additional District Judge under Section 18 of the Act, but those proceedings of execution remained in limbo because of the pendency of the defective First Appeal hereinbefore referred to by the petitioner that was until its decision on 26.07.2006, pending before this Court. It is the petitioner's case that the Execution Application aforesaid was dismissed in default on 16.04.2010, a fact of which the petitioner was never informed by his counsel at any point of time. It is specifically said in paragraph 9 of the petition that the petitioner came to know about the order dated 16.04.2010, relating to dismissal of his Execution Application from the office of respondent no. 3, for the first time, on 01.06.2017 when he demanded payment of compensation in terms of the award. It is asserted that immediately on the day following, that is, 02.06.2017, the petitioner went to his counsel's residence, that is to say, the residence of Sri Mahipal Singh, a resident of District Ghaziabad. After inquiry, he informed the petitioner that by some inadvertent error, he missed noting the date it in his diary, that fell on 16.04.2010. The petitioner was informed with regret that it was on that account the Execution Application came to be dismissed in default, in the petitioner's absence, on 16.04.2010. It was in this background that the petitioner was given to understand by his counsel that he could not inform the petitioner about the factum of dismissal of his Execution Application in default, or could he advise the petitioner to move for a recall of the said order. It is pointed out with much emphasis by the learned counsel for the petitioner that on the petitioner's request, the learned counsel appearing for him in Execution Application, Sri Mahipal Singh, Advocate initially agreed to file his own affidavit or an affidavit of his clerk in support of the application seeking recall of the order of dismissal in default, but lateron, for reasons best known to him, filed a restoration application on 05.10.2017 supported by an affidavit of the petitioner. The recall application was accompanied by a delay condonation application, also supported by the said affidavit. It is asserted that the petitioner is almost an illiterate person. He was entirely dependent on the learned counsel whom he had instructed to pursue the matter on his behalf. Though, it is averred that his counsel could not explain the delay properly, and, on that account, the delay condonation application came to be rejected by means of the impugned order dated 23.01.2019, and resultantly, his application to set aside the order dated 16.04.2010, dismissing the Execution Application in default, learned counsel for the petitioner, at the hearing, has candidly pointed out that the application to set aside the order dated 16.04.2010 was rejected on ground that an application to set aside an order made ex parte or in default disposing of an execution application, is governed by the provisions of Order XXI Rule 106 CPC, where by virtue of provisions of Order XXI Rule 106 (3) CPC, there is an uncondonable limitation of 30 days to set aside such an order. It is also pointed out that the Court below held that the provisions of Section 5 of the Limitation Act have no application to an Execution Application decided ex parte or in default under Order XXI, where Order XXI Rule 106 CPC is a complete Code. It was also held by the Executing Court that the provisions of Section 151 CPC that were pressed into service on the petitioner's behalf, seeking to set aside the order dated 16.04.2010, passed in the execution case dismissing it in default, were inapplicable. This course of action, too, was based on the same reasoning that Order XXI Rule 106 CPC is a compete Code governing an application to set aside orders dismissing an Execution Application in default or proceeding ex parte, where Section 151 CPC has no application.
9. Learned counsel for the respondent, Sri Sunil Kumar Mishra has supported the order impugned passed by the Court below precisely adopting the reasoning subscribed to by the Court below in passing that order. In short, the submission is that once an Execution Application is dismissed in default, an application, to set such an order, has to be brought within the condonable limit of 30 days under Order XXI Rule 106 (3) of the Code. If it is brought beyond that date, the application to set aside an order made ex parte in execution proceedings, is not maintainable as the delay cannot be condoned. It is also argued that there being a special provision under the Code governing limitation in terms of the Rule 106(3) of Order XXI, Section 5 of the Limitation Act cannot be pressed into service nor can the provisions of Section 151 CPC called in aid.
10. Learned counsel for the petitioner, Sri Uma Kant Mishra has drawn the attention of the Court to a certain distinction in law, regarding the stage of proceedings in an execution, when an order, dismissing the Execution Application in default, is passed and its ramifications on the right of the decree holder to apply for a restoration of the Execution Application, vis-a-vis limitation prescribed under Order XXI Rule 106 (3) CPC. It is submitted by Sri Uma Kant Mishra, learned counsel for the petitioner that Order XXI Rule 106 (3) CPC comes into play, or so to speak, Rule 106 of Order XXI, as such, is applicable when the Execution Application dismissed in default or proceeded ex parte is set down for hearing. It does not apply if the Execution Application is fixed before the Court for some other purpose, such as for some other steps being taken, or disposal of some office report regarding service, or disposal of some miscellaneous application. He has drawn the attention of the Court to the order dated 27.03.2010, which shows that a receipt bearing paper no. 24 BC has been filed on behalf of the decree holder. The order further shows that 16.04.2010 was the date fixed for disposal. He emphasized that 16.04.2010 was not a date fixed for hearing in the Execution Application. Learned counsel for the petitioner, therefore, submits that once the case was not set down for hearing, Order XXI Rule 106 CPC would not at all be attracted, and so also the non-condonable limitation prescribed under sub Rule (3) of Rule 106 of Order XXI. It is pointed out by the learned counsel for the petitioner that in the event of dismissal of an Execution Application, when it is not set down for hearing but some other purpose or step in proceedings, the power to recall or set aside, is to be drawn from Section 151 CPC and not Order XXI Rule 106 CPC. Once that is the case, as the one here, the Executing Court has gone utterly wrong in invoking Order XXI Rule 106 CPC to hold the petitioner's application to set aside, along with the delay condonation application to be not maintainable on ground that sub-Rule (3) of Rule 106 of Order XXI does not contemplate the power to condone delay.
11. This Court has considered the submissions advanced on both sides and carefully perused the record. A perusal of the order sheet indeed shows that going by the three orders preceding the one dated 16.04.2010, when the Execution Application was dismissed for non prosecution, the case was successively posted for disposal. The two orders passed on 31.10.2009 and 30.10.2010 show that the decree holder was not present when the case was called on, but was granted seven days' time to take steps. On each of the two days last mentioned, the Execution Application was posted for disposal. 'Disposal' would be referable to the service report. On 27.03.2010, that is to say, the date preceding the order dated 16.04.2010 dismissing the Execution Application, the following order was passed:
"आज पेश हुआ। D.H की ओर से रजि. रसीद २४ BC दाखिल हुई । वास्ते निस्तारण १६.०४.१० को पेश हो।"
12. It is thus evident that on 16.04.2010, when the case was dismissed in default, though those words are not expressly employed, the Execution Application was posted for disposal and not set down for hearing. There is no quarrel about the issue that on 16.04.2010, the case was dismissed in default and not on merits, though the words 'in default' have not been specifically used. The parties have not been at issue about the nature of the order dated 16.04.2010 being one in default, either before this Court or before the Court below. Even otherwise, a reading of the order made on 16.4.2010 does not spare as much as a hint showing it to be an order made on merits. It is clearly an order dismissing the execution proceedings in default or non prosecution. It would be profitable to refer to the provisions of Order XXI Rule 106 CPC, which are quoted in extenso:
106. Setting aside orders passed ex parte, etc-(1) The applicant, against whom an order is made under sub-rule (2) of Rule 105 or the opposite party against whom an order is passed ex parte under sub-rule (3) of that rule or under sub-rule (1) of Rule 23, 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 things fit, and shall appoint a day for the further hearing of the application.
(2) No order shall be made on an application under sub-rule (1) unless notice of the application has been served on the other party.
(3) An application under sub-rule (1) shall be made within thirty 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.
13. A perusal of sub-Rule (1) of Rule 106 of Order XXI shows that the first postulate that attracts the power under Rule 106 is that the order must be one made under Sub-rule (2) of Rule 105 of Order XXI, or under Sub-rule (3) of Rule 105 last mentioned, or under Sub-rule (1) of Rule 23 of Order XXI of the Code. The second postulate is that anyone, who invokes the provisions of Rule 106 of Order XXI, must satisfy the Court that there was sufficient cause for his non appearance when the Execution case was called on for hearing, almost to borrow the phraseology of the statute. It needs further exploration as to what pre-condition, the first postulate to invoke the provisions of Rule 106, envisages. A reference to the provisions of Rule 105 of Order XXI would be apposite. Rule 105 of Order XXI reads thus:
105. Hearing of application-(1) The Court, before which an application under any of the foregoing rules of this Order is pending, may fix a day for the hearing of the application.
(2) 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.
(3) Where the applicant appears and the opposite party to whom the notice has been issued by the Court does not appear, the Court may hear the application ex pare and pass such order as it things fit.
Explanation-An application referred to in sub-rule (1) includes a claim or objection made under Rule 58.
14. Sub-Rule (1) of Rule 23 of Order XXI has no relevance to the context of the facts in hand as that would be attracted, where a notice to show cause is issued to the judgment debtor and such judgment debtor, either does not appear, or appears but does not show cause to the satisfaction of the Court. What, therefore, comes into play in the facts of this case is sub-rule (2) of Rule 105 of Order XXI of the Code. A reading of the Rule 105 (supra) shows that it speaks about the Court fixing a date for hearing of the application; that is what Sub-Rule (1) of Rule 105 envisages. The dismissal of the application under Sub-Rule (2) of Rule 105 last mentioned is, therefore, a dismissal that comes about as a result of absence of the applicant on the date fixed for hearing, either originally fixed or the adjourned date, where the applicant fails to appear. But, there is little doubt on a plain construction of provisions of Sub-rule (2) of Rule 105 that the power to dismiss in default for non prosecution, which is precisely the nature of the power conferred by the said sub-rule, must have been exercised on a day fixed for hearing of the Execution Application, that may be date fixed in the first instance or an adjourned date. It cannot be a date for any other purpose, such as taking steps, or for disposal of some report, or other application.
15. It would be gainful to refer to authority on the point where this question has arisen in the past. This question arose before the Gauhati High Court in Deo Narayan Goala (Deceased by L.R.) and others vs. Jagadish Pandit1. It was a case where the Execution Application had been rejected on a date that was not fixed for hearing . The decree-holder applied to set aside the order rejecting the application in his absence, invoking the provisions of Section 151 CPC. In the said case, the Execution Application was dismissed on a date, which was fixed for disposal of an application by the Judgment Debtor, seeking stay of execution till harvesting was done. There were also objections by the decree-holder to that application up for orders. It was not a date fixed for hearing of the Execution Application but the Court had dismissed the Execution Application on ground that no steps were taken for proceedings with the execution. This, the Court did after dismissing the Judgment-debtor's application and the decree-holder's objections thereto as infructuous. The Executing Court on an application made to set aside the order dismissing the Execution Application, did so invoking its inherent powers under Section 151 CPC. That order was challenged before the Gauhati High Court. The Court holding that the provisions of Rule 106 of Order XXI do not apply, unless it is a date fixed for hearing of the Execution Application, said thus in paragraph 5 and 8 of the report:
"5. These two Rules were inserted by the Code of Civil Procedure Amendment Act, 1976 and were brought into force with effect from 1st February, 1977. R.105 deals with the hearing of an Execution Application. Sub-clause (1) of R.105 requires the court to fix a date for the hearing of an Execution Application. Sub-clause (2) of this Rule provides that if on the date fixed for hearing of the Execution Application or any application arising out of the Execution Application or on any other date to which the hearing may be adjourned, the applicant does not appear when the case is called on for hearing, the court may dismiss that application. Similarly if the other party to whom the notice has been served does not appear, the court may proceed to hear the application ex parte and pass such orders as it thinks fit and proper. Rule 106, empowers the executing court to recall the order of dismissal passed ex parte and it provides that the court may set aside the order passed either under sub-clause (1) of R.105 or of sub-clause (2) of R.105, if it is satisfied that there was sufficient cause for the non-appearance when the application is called on for hearing. R.105 also covers the Execution Application. The court may fix a date of hearing of an Execution Application if any objection is filed against the same and if on the date of hearing of the application, the decree-holder is not present, the application may be rejected. Similarly, if the judgment-debtor is not present at the time of hearing of the Execution Application, the hearing may be done ex parte and suitable orders may be passed in the case after hearing the decree-holder. R.105 however does not deal with the situation when an Execution Application is rejected on account of not taking the requisite steps in the case. It is quite plain from sub-clause (1) of R.105 that the court may fix a date for the hearing of the application. But before an application is set down for hearing, it should have in fact, ripened for the hearing. In other words, the judgment-debtor should have the information that an application has been moved against him and he may show cause against the same. In order to serve notices on the judgment-debtor certain steps are to be taken. If the decree-holder does not take the requisite steps to serve notice on the judgment-debtor, the Execution Application may be rejected on account of non-prosecution. But that order of rejection will not be covered by R.105, Code of Civil Procedure; because, the date was not fixed for hearing the application but was fixed for taking requisite steps in the case. This distinction is also made out in the provisions of O.9 of the Code of Civil Procedure. I have referred to the provisions of O.9 not with a view to say that those provisions apply to the execution case but I have just mentioned them by way of an illustration. It cannot, therefore, be said that R.105 covers all the situations and if any application has to be made for setting aside the ex parte order, it should be only under R.106 of O.21. In fact R.106 comes into play when an application was fixed for hearing and the applicant was absent at the time of the hearing and the application was therefore rejected. In the case in hand, the learned Munsiff rejected the Execution Application on the ground that the decree-holder took no other steps for proceeding with the execution. Quite obviously, the Execution Application was not fixed on 11th July 1980 for its hearing. The petition No. 49/11 filed by the judgment-debtor was fixed for hearing and that petition was rejected on that day. After rejecting that application, the court below further passed an order dismissing the execution case for default on the ground that the decree-holder took no other steps. This order was obviously not covered by the provisions of R.105 of O.21, Code of Civil Procedure. Hence the provisions of R.106 could not be invoked. The decree was passed on 4th March, 1968. The period of 12 years had expired on 4th March, 1968. The Execution Application was dismissed on 11th July, 1980. In these circumstances, the decree-holder filed an application under S.151, Code of Civil Procedure for recalling the order of 11th July, 1980 instead of filing a second application for execution.
8. I have already pointed out above that the provisions of Rules 105 and 106 of O.21 could not be invoked on the facts and circumstances of the instant case. There is no other express provision in the Code of Civil Procedure dealing with the situation which had arisen in the present case. The trial court had not fixed the Execution Application for hearing on 11th July, 1980. It had fixed that date for hearing of the petition of the judgment-debtor whereby he wanted the stay of the execution proceedings till the harvesting was done. That application was rejected by the court below as it had become infructuous. The parties were present before the court. If any steps were required to be taken by the decree-holder for proceeding with the execution, the court should have granted time for doing so. Instead, the court below rejected the application in default. The decree-holder therefore applied for setting aside that order. Such an order not being covered by R.105 of O.21, Code of Civil Procedure, the application for setting it aside could not be filed under R.106 of O.21. The inherent power of the Court was, therefore, invoked to set aside that order. The court below having found that there were sufficient grounds for setting aside that order, recalled it and allowed the application of the decree-holder and fixed 24th July, 1980 for taking steps in the case. Such an order could not be said to be capricious or arbitrary. The discretion exercised by the court below in setting aside the order dated 11th July 1980 could not therefore be interfered with. In fact the impugned order was passed in the interest of justice and taking of course the notice of the fact that the alternative remedy to file a fresh Execution Application had become barred by time. The petitioners have thus failed to make out a case warranting interference under S.115 of the Code of Civil Procedure."
16. Likewise, the question again fell for consideration before the Madhya Pradesh High Court in Khoobchand Jain and another vs. Kashi Prasad and other2. In the said case, the decree put to execution was a money decree. The decree-holder applied for execution and after the judgment-debtor had put in appearance, a warrant of attachment of movables was issued, upon the decree-holder furnishing a list of movables and requisite process fee, within three days. The decree-holder took the requisite steps and warrant to attach the movables, in accordance with the list, was issued. The judgment-debtor, however, objected to the warrant before the Court on ground that suit as against him had been dismissed, and, therefore, his property could not be attached. In this circumstance, the Executing Court upheld the said objection and directed the decree-holder to furnish a list of movables of judgment-debtors and not the defendant against whom the suit was dismissed. The decree-holder could not furnish list of movables of the judgment-debtors, in consequence of which, no warrant of attachment could be issued. The Executing Court on the last date fixed had granted some further time to the decree-holder to furnish the requisite list of movables, and on such a list being furnished, ordered the warrant of attachment to be issued. The case was last adjourned for the purpose of furnishing that list to 21.08.1979. On the said date, neither the decree-holder or their counsel appeared in Court and the Execution Application was dismissed in default of the decree-holder's appearance. The decree-holder filed a restoration application under Order XXI Rule 106 of the Code on 24.09.1979, explaining the delay. The Application was opposed on ground of limitation by the judgment-debtor. The decree-holder filed an application for condonation of delay, which too was opposed by the judgment-debtor. The Executing Court rejected the application to set aside the order on ground that Section 5 of the Limitation Act does not apply to an application under Order XXI Rule 106 of the Code and a miscellaneous appeal to the District Judge was also dismissed. On a Revision being filed to the High Court, it was held thus in paragraph 17, 18, 19 and 20 of the report:
17. Rule 106 of O. 21 of the Civil P.C. provides that if the Court is satisfied that there was sufficient cause for non-appearance, when the application was called for 'hearing', the Court shall set aside the order. No such order shall be made unless the application is made within 30 days from the date of order. Rule 105 contemplates dismissal of the application on a date of 'hearing', while Rule 106 provides, for restoration of application on making out sufficient cause for non-appearance, when the application was called for 'hearing'.
18. In my opinion, the date on which the Execution Application was dismissed for default of appearance of the decree-holders, namely, 21-8-1979 was not a date fixed for 'hearing' within the meaning of Rule 105. It was a date awaiting report as to execution of the warrant which was supposed to be issued on submission of a list of moveable property by the decree-holders within three days of the earlier order dated 21-7-1979. Consequently, the dismissal of Execution Application on 21-8-1979 was not under Rule 105(2) of O. 21 of the Civil P.C., and therefore, the provisions of R. 106 are not attracted. The dismissal of the Execution Application in default of appearance on 21-8-1979 is referable to inherent powers of the Court.
19. I have pointed out above that there is a specific provision for dismissal of suit for non-payment of costs etc. in O. 9, while there is no analogous provision in O. 21 of the Civil P.C. Consequently, the dismissal of Execution Application for non-payment of process-fee or for failure to comply with any direction of the Court, will be in exercise of inherent powers. In the present case, the dismissal was not failure of the decree-holders to pay process fee or to submit a list of property, but was in default of appearance of the decree-holders. The Courts below committed a mistake in treating the dismissal of Execution Application under R.105 so as to attract R.106 of O.21 of the Code. The orders passed by the Courts below cannot be sustained.
20. Since the dismissal of the Execution Application on 21-8-1979 was under inherent powers, the application for its restoration will be by invoking the inherent powers of the Court and in that event, no time limit is prescribed for invoking the inherent powers of the Court.
17. The same question fell for consideration before the Orissa High Court in Dambarudhar Mohanta vs. Mangulu Charan Naik and others3. In the said case, the Execution Application was dismissed in default on a certain date because requisite steps were not taken by the decree-holder. A restoration application made under Section 151 C.P.C., beyond the period of 30 days was rejected on ground that provisions of Section 151 were not applicable, in view of specific provisions of Order XXI Rule 106 CPC, where a time barred application to set aside an order dismissing the Execution Application in default was not maintainable. In the context of the said facts, a Revision from the said order was allowed by the District Judge on ground that the provisions of Order XXI Rule 106 were not attracted. It was held in paragraph 6 of the report thus.
"6. On perusal of the impugned orders and the order of learned Civil Judge, provision under Order 21, Rule 106, CPC and the aforesaid contention of the petitioner, this Court finds that the view expressed by the District Judge relating to non-applicability of the provision of Order 21, Rule 106 relating to restoration of an execution case dismissed for default is correct. In other words, the execution proceeding dismissed in such a manner cannot be restored on an application under Order 21, Rule 106, CPC. In that respect in the absence of any specific provision in the Code of Civil Procedure. Provision in Section 151, CPC is the only provision to consider the prayer for restoration................................"
18. The question was also considered by the Supreme Court in Damodaran Pillai and others vs. South Indian Bank Ltd.4, where the Execution Application, that was set down for hearing, was dismissed in default on 1.11.1990. The restoration application was filed on 4.4.1998 on ground that the decree-holder came to learn about the dismissal of the application on 25.3.1998, and not earlier. The restoration application was rejected by the Subordinate Judge, and so was the Revision by the Kerala High Court. Their Lordships of the Supreme Court upheld that order after distinguishing the decision of the Madhya Pradesh High Court in Khoobchand Jain and another (Supra), which verifies the legal position that the provisions of Order XXI Rule 106 C.P.C. apply if the application has been set down for hearing but not otherwise. It was held in Damodaran Pillai and others (Supra) by their Lordships thus:
"19. Mr Joshi, however, placed strong reliance upon Khoobchand Jainv.Kashi Prasad[AIR 1986 MP 66 : 1986 MPLJ 52] . The said decision, in our opinion, has no application to the facts and circumstances of the present case. Therein the Execution Application was dismissed on a day which was not fixed for hearing. The said order of dismissal, therefore, was not passed in terms of sub-rule (2) of Rule 105 of Order 21 of Code of Civil Procedure. In that situation it was opined: (AIR p. 69, para 15) "15. In the present case, the decree-holders had already applied for execution and paid process-fee for issuance of a warrant of attachment. It was, therefore, for the Court to issue a warrant of attachment of such property as was in possession of the judgment-debtors. Submission of the inventory of movable property in possession of the judgment-debtors is not necessary under the relevant rules. In case, the warrant is returned unexecuted, the decree-holders could, in their discretion, make an application for examination of the judgment-debtors under Rule 41 or could resort to any other mode to recover the decretal amount."
It was further observed: (AIR p. 70, para 20) "20. Since the dismissal of the Execution Application on 21-8-1979 was under inherent powers, the application for its restoration will be by invoking the inherent powers of the Court and in that event, no time-limit is prescribed for invoking the inherent powers of the Court."
19. The question was considered by this Court in Arjun Prasad vs. Sameer Jahan Begum5. It is a case where the Execution Application had been dismissed on a date that was not fixed for hearing but for summoning the file. In that context Janardan Sahai, J. held thus:
"Sub Rule 1 of Rule 105 provides that the court before which an application under Order 21 is pending may fix a day for the hearing of the application. It is thus clear that it is not every date fixed in a pending application which is a date for hearing. A date for hearing would be a date fixed by the court for that purpose. A date for hearing would be one where the court proposes to hear the case or to apply mind to the case. The power of dismissal of the application in the absence of the applicant provided under Sub Rule (2) can be exercised on a day fixed for hearing or on a day to which the hearing has been adjourned. When the court fixes a date for production of the file it does not fix a date for hearing within the meaning of Sub Rule 1. If the record is not produced on that date and the court fixes another date for the production of the record, such adjourned date would not be a date to which the hearing has been adjourned within the meaning of Sub Rule (2) of Rule 105.
In the present case it has been held by the courts below that the date fixed was for summoning the file. The date was not one where the court proposed to apply mind or to hear the parties. Such a date cannot be treated as the date for hearing within the meaning of Rule 105 (2) of Order 21 CPC. The application for restoration in such a case would lie under Section 151 CPC and not under Rule 106."
20. This question was again considered by this Court in State of U.P. vs. Saifi Abdul Hasan Nimachawala6, where after survey of most of the decisions refered to in detail hereinabove, it was held thus:
"15. The consistent view therefore, is that Rule 106 would apply only when the execution proceedings is fixed for hearing in terms of Rule 105 of Order XXI and in the event of the petition being dismissed prior to the stage of hearing, in absence of a specific provision, the court is competent ot restore the petition in exercise of its inherent power."
21. A perusal of the order dated 27.3.2010 does not spare the slightest doubt that 16.4.2010 was not a date fixed for hearing but orders or disposal of the service report, regarding steps earlier directed to be taken vide orders 31.10.2009 and 30.01.2010, and may be, also on the document that was filed, bearing paper no. 24 BC on 27.3.2010. It was certainly not a date that was fixed for hearing the application within the meaning of sub-rule (2) of Rule 105 of Order XXI C.P.C. Thus, the order dismissing the Execution Application on 16.4.2010 cannot be said to be an order passed in exercise of jurisdiction under Order XXI Rule 106 of the Code. That being so, a restoration application, or an application to set aside the order 16.4.2010 is not at all one made under Rule 106 of Order XXI, so as to attract the bar of limitation, under Sub-rule (3). It is clearly an application under Section 151 CPC to which the rule of limitation, under Sub-rule (3) of Rule 106 of Order XXI, does not apply.
22. Since, the impugned order dated 23.1.2019 proceeds entirely on the basis that the application is barred by limitation, which cannot be condoned treating it in manifest error to be an application under Order XXI Rule 106 of the Code, the impugned order aforesaid passed by the learned IVth Additional District Judge/Special Judge E.C. Act, Bulandshahar is manifestly illegal and liable to the set aside.
23. In the result, this petition succeeds and is allowed. The impugned order dated 23.01.2019 passed by the learned IVth Additional District Judge/Special Judge (E.C.) Act, Bulandshahar in Miscellaneous Case No. 1418 of 2017 is hereby set aside with a remit of the matter to the learned IVth Additional District Judge/Special Judge (E.C.) Act, Bulandshahar to redetermine the belated application for restoration, together with the delay condonation application filed in its aid in proper sequence, in accordance with law, after hearing all parties concerned, afresh. In doing so, the learned IVth Additional District Judge/Special Judge (E.C.) Act, Bulandshahar will bear in mind what has been said in this judgment. The learned IVth Additional District Judge/Special Judge (E.C.) Act, Bulandshahar will decide Miscellaneous Case No. 1418 of 2017 within a period of two months from the date of receipt of a certified copy of this order.
Order Date :- 11.09.2019 BKM/Deepak-