Orissa High Court
Sri Dambarudhar Mohanta vs Mangulu Charan Naik And 2 Ors. on 23 February, 2004
Equivalent citations: AIR2004ORI126, 97(2004)CLT442, 2004(I)OLR421, AIR 2004 ORISSA 126, (2004) 3 CIVLJ 168, (2004) 97 CUT LT 442, (2004) 1 ORISSA LR 421
Author: P.K. Tripathy
Bench: P.K. Tripathy
ORDER P.K. Tripathy, J.
1. Heard.
2. This writ petition stands disposed of at the stage of admission after hearing learned counsel for the petitioner and finding no illegality in the impugned order passed by the District Judge, Keonjhar in Civil Revision No. 14 of 1994,
3. Petitioner is the judgment-debtor and the opposite party No. 1 is the decree-holders in Execution Case No. 23 of 1983 of the Court of Civil Judge (Senior Division), Keonjhar. That Execution Case was dismissed for default on 25.6.1993 because of not taking requisite step by the decree-holder. On 3.2.1994 application for restoration vide M.J.C. No. 69 of 1993 filed by the petitioner was rejected by learned Civil Judge on the ground that the provision in Section 151, CPC is not applicable for restoration and that the provision under Order 21, Rule 106, CPC is applicable but the petition being barred by time the prayer for restoration cannot be allowed.
4. Opposite Party No. 1 preferred Civil Revision No. 14 of 1994 against the aforesaid order passed by the Civil Judge. After hearing the parties, learned District Judge recorded the finding's that learned Civil Judge misconceived about the legal provision relating to restoration inasmuch as for restoration of execution case dismissed for default provision of law under Order 21, Rule 106, CPC is not applicable and in the absence of any other specific provision, the provision of law in Section 151, CPC is invokable to consider the prayer for restoration. He also found that when the petitioner was ill and advised for eight weeks' rest, that should have been appropriately considered both relating to condoning the delay and for restoring the execution proceeding. Taking that view in the matter learned District Judge allowed the application for restoration of the execution proceeding.
5. Learned counsel for the petitioner reiterating the grounds on which learned Civil Judge rejected the prayer for restoration, argues that learned District Judge committed blunder by not correctly understanding the provision of law in Order 21, Rule 106, CPC and for not properly appreciating the facts and contention relating to delay and default.
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. So far as the factual finding recorded by learned District Judge is concerned this Court is not inclined to interfere with the same when petitioner is unable to state of any illegality or perversity in such finding. Besides that while in seisin of the matter under Article 227 of the Constitution of India, it is neither required under the law nor found desirable by this Court to interfere with a discretionary but lawful order passed by learned District Judge.
Thus the writ petition is dismissed being devoid of merit.