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1. This judgment will dispose of two appeals; the first impugns an order dated 31.03.2011 (EFA 42/2011); the second (EFA 41/2011) impugns two orders - dated 02.08.2011 and 20.09.2011. The first order dismissed an execution petition (EP 38/1998); the other two orders rejected the application for recall of that order, under Section 151, and the review of the order rejecting the recall application.

EFA (OS) 41&42/2011 Page 1

2. The facts briefly are that the appellant (hereafter "Formosa Plastics") is a foreign decree holder; it sought execution of a decree of the Chancery Division of the UK High Court, dated 24.10.1997, under Section 44A of the Code of Civil Procedure (CPC). The proceeding was registered as EP 38/1998. The execution proceedings were pending for a considerable period of time; the respondent/judgment debtor had filed applications, contending that the proceeding was not maintainable; he sought its rejection. Since some of those applications (EA 525/1999 and EA 569/1999) were pending, the Court permitted withdrawal of another similar application (EA 538/2010), on 08.10.2010. While so, the matter was heard partly on 15.11.2010 by Justice V.K. Shali. It was adjourned to 16th December, 2010. On that date, the judge was on leave; consequently the proceedings were adjourned to 31.03.2011. On the later date, the execution proceedings were listed before Justice J. R. Midha. Though the arguments in the matter were heard partly by Justice Shali, the matter was listed before Midha, J. There was no appearance on behalf of Formosa Plastics; the learned judge therefore, dismissed the execution petition.

4. At the outset, counsel for the respondents had objected to the maintainability of the present appeal on two counts; that the order refusing to recall the order rejecting the execution for non-appearance and an order refusing EFA (OS) 41&42/2011 Page 2 to review such order are not appealable. It was contended on behalf of the respondents that such orders are not of the kind that are based on any determination of fact-appreciation; consequently they do not fall within the description of "appealable" orders. Counsel relied upon the judgment of the Supreme Court in Shah Babulal Khimji vs Jayaben D. Kania & Anr1. It is secondly urged that this Court should not condone the delay in the filing of the present appeals especially with respect to the order dated 31.03.2011. Besides, it is urged that the filing of the appeal itself is suspect because the case set up by Formosa Plastics is that one Mark Palay was in correspondence with its local counsel. Mark Palay's authorization was never shown to the Court much less established. In the circumstances, whether he could have permitted the filing of an application for recall of the order of dismissal in default and whether the present appeal itself could have been filed is questionable. 

EFA (OS) 41&42/2011                                                          Page 3
 concerned.       It was next argued that the learned Single Judge fell into error in

holding - in the orders dated 2.8.2011 and 20.9.2011 - that the application for restoration was not maintainable. It was submitted that the reference to Order- XXI, Rule 106, in the circumstances of the case was not appropriate. Mr. Arvind Nigam, learned senior counsel argued that the reliance placed upon the judgment of the Supreme Court in Damodaran Pillai v. South Indian Bank Ltd.3 was inappropriate. In this regard, reliance was placed upon the judgment of the Division Bench in Deutshe Ranco GmbH v. Mohan Murti4. It is urged that the Division Bench in Deutche Ranco made a pointed distinction between the listing of an Execution Petition for final hearing and the listing of execution proceedings. Unless entire Execution Petition itself was listed for final hearing and rejected without a decision on merits, i.e., for non-prosecution, Order-XXI, Rule 105 would not apply. Learned counsel relied upon the Madhya Pradesh High Court's ruling in Khoob Chand Jain & Anr. v. Kashi Prasad & Ors5. It is urged that when the Court dismisses the Execution Petition on a date when it is not fixed for hearing, but for certain ancillary proceedings such as consideration of other applications, Order XXI Rule 106 would not be attracted.

26. EFA 41/2011 has to succeed. EFA 42/2011 is to succeed to the extent indicated in the preceding paragraph and for decision as to whether sufficient cause was shown by the appellant to explain the delay in the filing of EA 438/2011, the said application and the application for condoning the delay shall be listed before Midha, J, on 25.05.2016 since he made the order dated 31.03.2011. The single judge is requested to hear and dispose of the matter expeditiously. EFA 41/2011 is allowed; EFA 42/2011 is allowed to the above extent.