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1981 DIGILAW 20 (PAT)

Awadhesh Kumar v. Banshidhar Agrawal

1981-01-24

K.B.N.SINGH

body1981
Judgment 1. This revision petition is directed against an order dated the 2nd July, 1980, of the Additional Subordinate Judge, dismissing Miscellaneous Judicial Case No. 2 of 1980, which was filed for restoration of another Miscellaneous Judicial Case, being Miscellaneous Judicial Case No. 2 of 1979. 2. Miscellaneous Judicial Case No. 2 of 1979 was filed by the judgment-debtor (petitioner) under Sections 47 and 151 of the Code of Civil Procedure, alleging that against the money decree passed on the 6th March, 1978, the petitioner filed Money Appeal No. 5 of 1978, and, after filing of the said appeal, the matter was settled between the parties with the intervention of the well-wishers and common friends, and the judgment-debtor (petitioner) gave to the opposite party potatoes worth Rs. 7,000.00 in satisfaction of the decree and it was agreed that the judgment-debtor (petitioner) would not pursue his appeal and the opposite party would file a satisfaction petition in the money suit. It was further alleged that in the beginning of June, 1979, the petitioner learnt that the decree-holder had filed Execution Case No. 3 of 1978 and was pursuing the matter. He rushed to court and on the 11th June, 1979, he came to know all these, on inspection of the records, and, on that ground it was prayed that the execution case should be dismissed as satisfied with special costs. 3. Miscellaneous Judicial Case No. 2 of 1979 was dismissed for default on the 21st June, 1980, in which the following order was passed :- For restoring the said Miscellaneous Judicial Case No. 2 of 1979, the petitioner filed an application on the 23rd June, 1980, stating that the petitioner filed a petition for time for two months on the 16th June, 1980, on the ground that the petitioner had got an attack of paralysis, on which the miscellaneous case was adjourned to the 21st June, 1980, on which date the petitioner was bed-ridden and could not come to court and after getting his Munsif traced sent him to court. The Munsif could not find out the lawyer, Smt. Sheo Kumari Shrivastava, who had gone to Delhi, and, as such, the Munsif got a petition filed in Court under his signature with late fee. The petitioner thereafter learnt from the Munsif that Miscellaneous Judicial Case No. 2 of 1979 had been dismissed. The Munsif could not find out the lawyer, Smt. Sheo Kumari Shrivastava, who had gone to Delhi, and, as such, the Munsif got a petition filed in Court under his signature with late fee. The petitioner thereafter learnt from the Munsif that Miscellaneous Judicial Case No. 2 of 1979 had been dismissed. It was alleged that there was no laches on the part of the petitioner and the prayer was accordingly made for restoring the said case. The said restoration petition has been dismissed by the impugned order. 4. Learned counsel for the petitioner has submitted that the learned Subordinate Judge, by the impugned order, has gone into the merits of the matter, where the only question that he should have considered was whether Miscellaneous Judicial Case No. 2 of 1980 was maintainable or not. 5. The learned court below, while considering the matter, has laid special emphasis on the fact that on the 16.06.1980, when the petition for time was allowed, time was granted on payment of Rs. 50.00 and Miscellaneous Judicial Case No. 2 of 1979 was fixed for the 21st June, 1980. On the said date, the court waited till 10.30 A.M. and when no step was taken the case had been dismissed for default. Learned Subordinate Judge also observed that at 11 Oclock (there being morning sitting of the court on the 21st June, 1980), a petition for time along with late fee, was filed on behalf of the petitioner, after the order or dismissal of the case for default was passed. The learned Subordinate Judge has also taken note of the fact that although restoration was claimed on the ground of the petitioner being ill, suffering from paralytic attack, no prescription of any Doctor was filed along with the restoration petition or till then to prima facie satisfying the court about the truth of the allegation contained in the petition. The court has also taken note of the fact that apart from Smt. Sheo Kumari Shrivastava there was another lawyer, Shree Dineshwar Prasad Singh, who had filed power on behalf of the petitioner in the case. The court came to the conclusion that a dilatory tactics adopted on behalf of the judgment-debtor to deprive the decree-holder of the fruits of the decree and, on that ground, it dismissed the petition as not maintainable. 6. The court came to the conclusion that a dilatory tactics adopted on behalf of the judgment-debtor to deprive the decree-holder of the fruits of the decree and, on that ground, it dismissed the petition as not maintainable. 6. It is true that an application for restoration under Sec.151 of the Code of Civil Procedure lies for restoring a petition dismissed for default. Learned Subordinate Judge has stated that the restoration petition "Chalane Yogya" (which he has translated as Maintainable) "Nahin Hai". Perhaps, what he meant was that there was no merit in the restoration petition and not that the said petition for restoration was not maintainable, otherwise, there was no meaning in his discussing, in a detailed order, the reasons for dismissing the said miscellaneous judicial case. 7. There is another difficulty in the way of the petitioner. The petitioner wanted satisfaction of the decree on payment alleged to have been made in 1978 itself, after filing of Money Appeal No. 5 of 1978, and the application, for holding that the decree was already satisfied by delivery of potatoes worth Rs. 7,000.00, was filed on the 13.06.1979. The petitioner was required to file the application for satisfaction of the decree under Order XXI. Rule 2 of the Code of Civil Procedure, read with Art. 125 of the Limitation Act, within thirty days of the payment. The alleged payment was made in the year 1978, and no application for certification or adjustment was made before the court within the statutory period. As such, the executing court could not take any notice of such satisfaction. Under the circumstances, I do not find that it is a fit case in which this court should interfere in exercise of its revisional jurisdiction under Sec. 115 of the Code of Civil Procedure. This application is accordingly dismissed, but, in the circumstances, there will be no order as to costs.