# Balvindar Singh /Plaintiff v. IV Addl. Distt. & Sessions Judge/ Special Judge (E.C. Act), Bulandshahar & Ors. /Defendants

- **Citation:** (2019) 2 ILRA 1189
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-11
- **Case number:** Matter Under Article. 227 No. 3276 of 2019
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/balvindar-singh-plaintiff-v-iv-addl-distt-sessions-judge-special-judge-e-c-act-44575
- **Pages:** 13

## Headnote

A. Code of Civil Procedure, 1908 - O-XXI,
Rules - 105 & 106 - petition-filed by a
decree holder -whose application-rejected
vide order impugned herein-by Executing
Court-in his absence -though expressly not
saying that the dismissal is in default.- the
date was not fixed for hearing-the order is
found to be manifestly illegal and liable to be
set aside.
Held: - 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. 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.

Writ Petition allowed (E-8)

List of Cases Cited: -

## Text

_Characters 0–39,998 of 44,598. This is a partial read: ask again with offset=39998 for what follows._

2 All. Balvindar Singh Vs IV Addl. Distt. & Sessions Judge/Special Judge (E.C. Act), Bulandshahr & Ors. 1189
application filed by respondent Nos.2 to 5
and to pass appropriate order in accordance
with law as per observation made above and
to decide the same within a period of six
months from the date of production of a
certified copy of this order.

21) The parties are, however, restrained
to seek unnecessary adjournments in the
matter.

22) No order as to costs.
----------

(2019)10ILR A 1189

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.09.2019

BEFORE

THE HON'BLE J.J. MUNIR, J.

Matter Under Article. 227 No. 3276 of 2019
(Civil)

Balvindar Singh ...Petitioner/Plaintiff
Versus
IV Addl. Distt. & Sessions Judge/
Special Judge (E.C. Act), Bulandshahar &
Ors. ...Respondents/Defendants

Counsel for the Petitioner:
Sri Rishu Mishra, Sri Uma Kant Mishra

Counsel for the Respondents:
Sri Anadi Krishna Narayana, Sri Sunil
Kumar Mishra

A. Code of Civil Procedure, 1908 - O-XXI,
Rules - 105 & 106 - petition-filed by a
decree holder -whose application-rejected
vide order impugned herein-by Executing
Court-in his absence -though expressly not
saying that the dismissal is in default.- the
date was not fixed for hearing-the order is
found to be manifestly illegal and liable to be
set aside.
Held: - 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. 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.

Writ Petition allowed (E-8)

List of Cases Cited: -

1. Khoobchand Jain and another vs. Kashi
Prasad and other

2. Deo Narayan Goala (Deceased by L.R.) and
others vs. Jagadish Pandit

3. Dambarudhar Mohanta vs. Mangulu Charan
Naik and others

4. Damodaran Pillai and others vs. South
Indian Bank Ltd

5. Arjun Prasad vs. Sameer Jahan Begum

6. State of U.P. vs. Saifi Abdul Hasan
Nimachawala

(Delivered by 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
1190 INDIAN LAW REPORTS ALLAHABAD SERIES
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
2 All. Balvindar Singh Vs IV Addl. Distt. & Sessions Judge/Special Judge (E.C. Act), Bulandshahr & Ors. 1191
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
1192 INDIAN LAW REPORTS ALLAHABAD SERIES
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
2 All. Balvindar Singh Vs IV Addl. Distt. & Sessions Judge/Special Judge (E.C. Act), Bulandshahr & Ors. 1193
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:

"आि पेश हुआ। D.H की ओर े रजि.
र ीद २४ BC दाल्दखल हुई । वास्ते जनस्तारण 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,
1194 INDIAN LAW REPORTS ALLAHABAD SERIES
against whom an order is made under subrule (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 subrule (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 Subrule (2) of Rule 105 that the power to
2 All. Balvindar Singh Vs IV Addl. Distt. & Sessions Judge/Special Judge (E.C. Act), Bulandshahr & Ors. 1195
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 Pandit. 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 Judgmentdebtor's application and the decreeholder'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 decreeholder is not present, the application may
be rejected. Similarly, if the judgmentdebtor 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
1196 INDIAN LAW REPORTS ALLAHABAD SERIES
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 judgmentdebtor 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 judgmentdebtor certain steps are to be taken. If the
decree-holder does not take the requisite
steps to serve notice on the judgmentdebtor, 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 decreeholder 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 judgmentdebtor 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 judgmentdebtor 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
2 All. Balvindar Singh Vs IV Addl. Distt. & Sessions Judge/Special Judge (E.C. Act), Bulandshahr & Ors. 1197
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
other. 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 decreeholder 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 judgmentdebtor.
The
decree-holder
filed
an
application for condonation of delay,
which too was opposed by the judgmentdebtor. 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.
1198 INDIAN LAW REPORTS ALLAHABAD SERIES
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 21-71979. 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 processfee 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 decreeholders. 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 others. 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,
2 All. Balvindar Singh Vs IV Addl. Distt. & Sessions Judge/Special Judge (E.C. Act), Bulandshahr & Ors. 1199
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., 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 subrule (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 judgmentdebtors. 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 Begum. 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
1200 INDIAN LAW REPORTS ALLAHABAD SERIES
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 Nimachawala,
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.