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CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 10593 OF 2023
Rahul Tatyaba Jamdar
R/o-Nawadi, Tal: Patan, District: Satara.
Through his Power of Attorney Holder
Tatyaba Krishna Jamdar r/o. Nawadi, Taluka Patan, District: Satara
… Petitioner vs.
Narayan Vishnu Nalawade
R/o. Nawadi, Tal: Patan, District Satara. … Respondent
Mr. Manoj Patil a/w. Mr. Shubham Dhenge for Petitioner
Mr. Rahul Soman a/w. Mr. Suyash More for the Respondent.
JUDGMENT
1. This petition is filed by the decree holder to challenge the dismissal of his application for restoration of the execution application.
2. By order dated 30th August 2023, notice for final disposal of the petition was issued. When the petition was taken up for final disposal, learned counsel for the respondent raised a preliminary objection that the petition would not be maintainable as the impugned order is appealable under clause (ja) of Rule 1 of Order XLIII of the Civil Procedure Code, 1908 (‘CPC’). Learned counsel for the respondent relied upon the decision of this court in the case of Dattatraya s/o Raghunath Jog Vs. Radhabai w/o Laxmanrao Ghate[1], to support his submissions. He submitted that the provisions of Rules 105 and 106 of Order XXI of the CPC would apply for the restoration of the execution application. He thus submits that once the execution application is dismissed and a restoration application is filed, the same would be appealable in view of clause (ja) of Rule 1 of Order XLIII of the CPC. He submits that in the decision of Dattatraya Jog, it is held that Rules 105 and 106 of Order XXI of CPC apply for restoration of execution application.
3. Learned counsel for the petitioner submits that the impugned order was not passed under an application under Rule 106 of Order XXI of CPC. He submits that the execution application was dismissed in default on 1st September 2014. Hence, the application for restoration was filed under Section 1 2007(3) Mh.L.J 425 151 of the CPC. He submits that the learned judge refused to exercise inherent power under Section 151 of the CPC for the restoration of the execution application. He further submits that neither the execution application was dismissed under Rule 105 of Order XXI of CPC nor was the application filed under Rule 106 of Order XXI of CPC. Therefore, according to the learned counsel for the petitioner, the impugned order would not be appealable and the writ petition is therefore maintainable.
4. To examine the preliminary objection, it is necessary to refer to the basic facts of the case. The execution application is filed for execution of the judgment and decree dated 8th January 2007, for specific performance of the contract in favour of the petitioner. On 1st September 2014, the executing court dismissed the application by passing the following order: “ORDER “Decree Holder and his advocate are absent. No steps are taken. No reason to proceed as it is. Hence, application is dismissed for default to take steps. Sd/- 01/09/2014”
5. The petitioner filed an application on 9th October 2014 for restoration of the execution application. This application is dismissed on 25th April 2022. The application is decided by treating it as an application under Section 151 of CPC. I have perused the roznama of the execution application. The entries in the roznama do not indicate that on 1st September 2014, the application was listed for hearing as contemplated under Rule 105 of Order XXI of the CPC. There is neither an order passed as contemplated under sub-rule (2) of Rule 105 of Order XXI of the CPC, nor an application filed and decided as contemplated under Rule 106 of Order XXI of the CPC. The executing court decided the restoration application in exercise of the inherent powers under Section 151 of CPC. Hence, the impugned order would not be appealable under clause (ja) of Rule (1) of Order XLIII of CPC.
6. Learned counsel for the petitioner relied upon various decisions to support his submissions that the impugned order will not be appealable as it is passed in exercise of the inherent powers under Section 151 of CPC. In the decision of Damodaran Pillai vs. South Indian Bank Ltd[2] the Hon’ble Apex Court held that if an order has been passed dismissing an application for default under sub-rule (2) of Rule 105 the application for restoration thereof must be filed only within a period of thirty days from the date of the order. In the facts before the Apex Court undisputably the execution application was fixed for hearing and was dismissed in terms of Rule 105 of Order XXI. While deciding the issue of limitation for applying for restoration, the Apex Court referred to a decision of Madhya Pradesh High Court in the case of Khoobchand Jain vs. Kashi, where it was held that where execution application was dismissed under inherent powers, the application for its restoration will be by invoking the inherent powers and in that event, no time limit is prescribed.
7. This Court, in the decision of Suglabai Jaishete vs. relied upon the decision of Apex Court in the case of Damodaran Pillai and various other decisions and held that since the execution application was not fixed for hearing there was no question of invoking the provisions of Order XXI Rule 105 and 106 of CPC. It was thus held that the order of restoration passed by the executing Court by exercising inherent powers under Section 151 was within jurisdiction by doing substantial justice. This Court, in the decision of Shaikh Chand Ahmed vs. Zaitunbee Shaikhlal[5] referred and relied upon the decisions of Damodaran Pillai, Suglabai and Dattatraya Jog and held that when disposal is out of the purview of Rule 105, it would amount to dismissal/disposal under the inherent powers of the Executing Court under Section 151 of the CPC.
8. By referring to the decision of Damodaran Pillai and various other decisions including the decision of Shaikh Chand and Subglabai Jaishete, this Court in the case of Botanium Ltd. vs. Babu Raghu[6] held that when the application not fixed for hearing under Rule 105 of Order XXI is dismissed in default of taking steps, the time period prescribed in sub-rule (3) of Rule 106 of Order XXI is not attracted. 5 2018 (2) ML.L.J.679 6 2019 (2) ML.L.J.
9. This Court in the decision of The Commissioner, Nashik Municipal Corporation Vs. M/s. R. M. Bhandari[7] held that when the decree was not satisfied, the application could not have been dismissed on the ground of absence of the advocate and in such case the Court is not powerless to exercise jurisdiction under Section 151 of the CPC. This Court held that Rule 105 of Order XXI of the CPC will not apply to all the Rules under Order XXI and it applies to applications which are specifically provided under Rule 97 onwards of XXI of the CPC. This Court, in the said decision observed that the execution application is not a substantive proceeding in the sense that an occasion for filing execution application arises when the judgment debtor does not comply with the decree of the Court and the application for execution is not a lis between the parties to the suit.
10. In the decision of this Court in the case of Dattatraya Jog, the observation in paragraph 6 relied upon by the learned counsel for the respondent is regarding time of thirty days for filing restoration application. Thus, the observation that Order
XXI Rules 105 and 106 speak of restoration of execution application is in relation to the dismissal as contemplated under Rule 105 of Order XXI of the CPC. Considering the law discussed above and in view of the legal principles settled by the Hon’ble Apex Court in the case of Damodaran Pillai, when an execution application is dismissed in terms of Rule 105, an application under Rule 106(1) can be filed for restoration within the period of limitation prescribed under Rule 106(3) of Order XXI of the CPC.
11. In view of the legal principles settled in the decisions discussed above it is clear that if an execution application is fixed for hearing as contemplated under sub-rule (1) of Rule 105 and is dismissed as contemplated under Rule 105, an application for restoration is provided under Rule 106 of XXI of the CPC. Thus, an order passed under such an application under Rule 106 is appealable under clause (ja) of Rule (1) of Order XLIII of the CPC. Therefore, if an execution application is dismissed by exercising inherent powers under Section 151 of the CPC, it’s restoration would also be by exercising the same inherent powers. Thus, an order rejecting an application for restoration of execution application which is dismissed by exercising inherent powers under Section 151 of the CPC would not be appealable under clause (ja) of Rule (1) of Order XLIII of the CPC. Even the wordings of the said clause clearly contemplates an appeal against an order rejecting an application under sub-rule (1) of Rule 106, provided that an order is on the original application, i.e. the application referred to in sub-rule (1) of Rule 105 of Order XXI of the CPC.
12. In the present case, the impugned order is passed on an application for restoration of the execution application which was not dismissed as contemplated under Rule 105 of Order
XXI. Therefore, Rule 105 and 106 of Order XXI is not applicable in the present case. Hence, in view of the legal principles settled in the various decisions as discussed above, there is no substance in the preliminary objection raised by the learned counsel for the respondent. The order impugned in this writ petition is not appealable.
13. On merits of the petition, learned counsel for the petitioner submitted as follows: a) The petitioner was represented through his power of attorney holder. Since the power of attorney holder was ill, from 30th August 2014 till 6th petitioner was not represented before the executing court when the application was listed on 1st b) There was no order passed directing the petitioner to take any steps in the execution application. He relied upon various entries in the roznama to point out the status of the execution application. The dates relied upon by the learned counsel for the petitioner to point out the stages in the execution application are as under: i) 26/02/2010: Regular Darkhast No.06/2010 filed and Notice issued to J.D. ii) 29/03/2010: J.D. appeared with Advocate and filed an application for time to file a say. Adjourned for filing of say. iii) 26/07/2010: No say order below Exhibit-1 against J.D. Adjourned to take steps by D.H. iv) 02/08/2010: Application of D.H. for appointment of court commissioner. Adjourned for filing, say by J.D. v) 14/06/2011: Application of D.H. is allowed. vi) 14/06/2011: Directed the D.H. to comply with the documents, commission, and process fee. Adjourned for compliance. vii) 14/07/2011: Application by D.H. to deposit commission fee. To send matter before the commission. viii) 14/11/2011: Application by J.D. (प्रतीवादीचा हि स्सा देत असलेबाबत चा अर्ज) Adjourned for filing say by D.H. ix) 21/11/2011: Application by J.D. to deposit money in the court. Adjourned for filing, say by D.H. x) 02/01/2012: Order of the Executing court to send the matter to the mediation centre. xi) 09/01/2012: Say on Exhibit-19 filed by the D.H. Adjourned for mediation. xii) Adjourned for several dates for the report of the Mediator. xiii) 23/10/2013: Adjourned for Compliance/Mediation Report. xiv) 28/07/2014: Adjourned for orders due to noncompliance. xv) 01/09/2014: Order passed on Exhibit-1. Dismissed for non-compliance. c) The entries in the roznama from 2nd January 2012, record that the matter was referred to the mediation centre. On 23rd October 2013, the matter was adjourned for compliance and awaiting a mediation report. On 23rd October 2013, the next date assigned was 18th November
2013. None of the entries in the roznama record that the execution application was listed for compliance to be made by the petitioner. Therefore, there was no reason to dismiss the execution application in default of taking steps on 1st d) For no fault on the part of the petitioner, the execution application has been dismissed in default of taking steps. To support the submissions that the petitioner’s power of attorney holder was ill during the relevant period, the medical certificate was relied upon by the petitioner. The medical certificate is disbelieved on the ground that the petitioner refused to examine the Doctor to explain the discrepancy regarding the period of illness. The relevant dates regarding the period of illness of the petitioner’s power of attorney holder were rectified by carrying out an amendment in the application. The grounds of illness and the dates of the illness were not denied. A medical certificate supports the fact of illness. Hence, there was no reason to examine the Doctor. In the reply filed by the respondent to the application for restoration, there was no dispute raised on the validity of the medical certificate, and there were no objections raised on the authenticity of the ground raised by the petitioner regarding the power of attorney holder’s illness during the relevant period. e) The impugned order rejects the application for restoration of the execution application on hyper-technical grounds and without appreciating that no compliance was to be made by the petitioner. Hence, there was no reason to reject the application in default for taking steps. f) Hence, the impugned order would require interference by this court as the petitioner would be entitled to proceed with the execution of the decree in his favour passed on 8th January 2007, which has attained finality.
7) Learned counsel for the respondent opposes restoration of the execution application by making the following submissions: a) The applicant shows no sufficient cause for the absence on 1st September 2014. Initially, the petitioner mentioned the period of illness of the power of attorney holder from 30th September 2014 till 6th October 2014. However, by carrying out the amendment, the period of illness was rectified as 30th August 2014 till 6th September 2014. The medical certificate relied upon by the petitioner refers to the date of illness only from 30th September 2014. Thus, only to justify the absence on 1st date of illness was changed from 30th September 2014 to 30th August 2014. However, the medical certificate to support the said ground was never produced by the petitioner. Thus, the trial court has rightly disbelieved the petitioner’s ground of illness as the petitioner refused to examine the Doctor to point out the discrepancy about the date of illness. b) In the absence of any supporting evidence, about the alleged illness of the petitioner’s power of attorney holder and without any justification for the absence on 1st September 2014, the executing court rightly rejected the application for restoration of the execution application. In view of the petitioner’s conduct, the executing court has rightly refused to exercise the inherent powers under Section 151 of CPC. Thus, there is no reason to exercise the discretionary jurisdiction of this court to interfere with the impugned order.
8) I have perused the papers of the petition. The decree in favour of the petitioner is dated 8th January 2007. The application for execution has been pending since 2010. The entries in roznama reveal that the matter was referred to mediation and on various dates, the application was adjourned for awaiting the mediation report. The other entries in the roznama show that there was an application filed for depositing the amount towards the court commissioner’s work. The petitioner had filed an application for the amount towards the court commissioner’s work to be paid by the respondent. The entry in the roznama on 20th July 2014, shows that the said application was also adjourned from time to time. None of the entries in the roznama show that there was any compliance to be made by the petitioner. Thus, the order dismissing the application in default to take steps is not justified as the execution application was never listed for any steps to be taken by the petitioner.
9) The application for restoration, apart from referring to the illness of the petitioner’s power of attorney holder for the absence on 1st September 2014, also refers to the application pending for seeking permission for the purpose of compliance with the decree under execution. The application refers to the steps taken by the petitioner for appointing Nazir to make an application for permission from the competent authority. The application further states that the dismissal of the execution application on 1st September 2014, was learnt by the petitioner only on 6th September 2014. Thereafter, the petitioner applied for certified copies, and an application for restoration was filed on 14th October 2014.
10) The application for restoration refers to the amendment made by the petitioner about the date of illness of the petitioner’s power of attorney holder from 30th August 2014 to 6th September 2014. The respondent has filed the reply to the said application. The reply does not raise any dispute on the ground of illness pleaded by the petitioner. So far as the medical certificate is concerned, its authenticity is not disputed by the respondent. A vague objection was raised on behalf of the respondent to oppose the application for restoration. The amendment carried out regarding particulars of dates of illness of the petitioner’s power of attorney holder is not denied in the reply. Therefore, the emphasis placed by the learned judge on the dates mentioned in the medical certificate and the dates pleaded by the petitioner appears to be unnecessary.
11) When the respondent did not deny the illness as pleaded by the petitioner, I see no reason to examine the Doctor to prove the medical certificate or illness of the power of attorney holder of the petitioner. The other reasons mentioned in the application regarding the appointment of Nazir for permission from the competent authority are not even considered by the learned judge. The reason for the order dismissing the execution application for default for taking steps is not even examined by the learned judge while deciding the application for restoration. When the execution application required no steps to be taken by the petitioner, the order dismissing the application itself is not justified and would not be sustainable. The reasons recorded in the impugned order are hypertechnical in emphasising only the dates of the illness pleaded by the petitioner. The learned judge has completely ignored the contents of the order dated 1st September 2014. In paragraph no. 9 of the impugned order, the learned judge observed that the petitioner had not taken meticulous care to justify the reasons for his absence; hence, the learned judge refused to exercise inherent powers under Section 151 of the CPC. This observation would not be sustainable without referring to the order dated 1st September 2014 and verifying whether the petitioner was at all required to take any steps for proceeding with the execution application.
12) This is an unfortunate case where, though a decree passed on 8th January 2007 has attained finality, only because the respondent has refused to comply with the decree, the petitioner was required to file the application for execution, which is dismissed for no fault on the part of the decree holder. When there were no steps required to be taken, there was no reason to dismiss the application for default. Hence, this is a fit case to exercise the discretionary jurisdiction under Article 227 of the Constitution of India to interfere with the impugned order. For no fault on the part of the petitioner, he is deprived of the benefit of the decree which has attained finality in his favour.
13) Hence, for the reasons recorded above, the petition is allowed by passing the following order: I) The impugned order dated 25th April 2022, passed by the Civil Judge, Junior Division, Patan in Civil Miscellaneous Application No. 28 of 2014, is quashed and set aside. II) Miscellaneous Application No. 28 of 2014 is allowed. III) The Execution Application No. 6 of 2010 is restored. IV) Since the execution application has been pending since 2010, the executing court shall make an endeavour to dispose of the application as early as possible. V) The parties shall appear before the concerned Executing Court at Patan on 6th October 2025. The learned concerned Judge shall thereafter fix the further schedule as convenient to the court. VI) It is clarified that no further notice of the Execution Application to the parties shall be necessary.
14) Writ Petition is allowed in the aforesaid terms. (GAURI GODSE, J.)