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2011 DIGILAW 2269 (RAJ)

Niranjan Lal v. Civil Judge

2011-10-21

MAHESH BHAGWATI

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JUDGMENT : Mahesh Bhagwati, J. By way of the instant writ petition, the petitioner has beseeched to quash and set aside the order dated 9th March, 2010 whereby the learned Civil Judge (Jr.Div.) Behrod District Alwar dismissed the application dated 11th October, 1999 of the petitioner-decree-holder and declined to restore the execution application. 2. Having heard the learned counsel for the petitioner-decree-holder and carefully perused the relevant material on record including the impugned order, it is noticed that the execution application was pending before the executing Court and the same was dismissed on 7th October, 1999 as neither the decree-holder nor the judgment-debtor was present on that day in the Court. The petitioner-decree-holder filed the restoration application imploring the court that the counsel for the decree-holder was busy in another case in another court and the fact of caling out the case did not come into his notice and hence, the execution application was dismissed in default of appearance of the decree- holder or his counsel. 3. The argument raised by the learned counsel for the judgment-debtor that the execution application once dismissed in default could not be restored. 4. Albeit, this argument did not become the basis of the dismissal of the application but the learned Executing Court observed that the petitioner-decree-holder utterly failed to convince the Court satisfactorily for his non-appearance. 5. Learned counsel for the petitioner contended that even if the execution application is dismissed in default and for the non-appearance of the counsel, the same can be restored to its original number and he has placed reliance on the following judgment rendered by the Hon'ble Apex Court as also by this Court from time to time. 1. AIR 1953 SC 23 [Vol.40, C.N.7] reported in the case of Keshardeo Chamria v. Radha Kissen Chamria & Ors. 2. AIR 1954 Rajasthan 15 (Vol. 41, C.N.6), reported in Khem Chand & Ors. v. Niranjanlal & Ors. 3. RLW 1997(1) Raj. 682 Reported in the case of Smt. Padmavati Devi v. J.D.A. Jaipur (Deceased) 4. RLW 1996(3) Raj. 381 reported in the case of Nanagram & Ors. v. Sagarmal & Ors. 6. 2. AIR 1954 Rajasthan 15 (Vol. 41, C.N.6), reported in Khem Chand & Ors. v. Niranjanlal & Ors. 3. RLW 1997(1) Raj. 682 Reported in the case of Smt. Padmavati Devi v. J.D.A. Jaipur (Deceased) 4. RLW 1996(3) Raj. 381 reported in the case of Nanagram & Ors. v. Sagarmal & Ors. 6. In the case of Keshardeo Chamria (Supra), the Hon'ble Apex Court observed that the order with regard to dismissal of the execution application by the Executing Court was neither appealable nor revisable and the Executing Court was enough to restore the execution application under Section 151 of Civil Procedure Code exercising inherent powers. Placing reliance on the judgment of Hon'ble Apex Court, the Division Bench of this Court in the case of Khem Chand and Ors. (Supra) held thus: "A dismissal of an execution application for default of appearance of the decree- holder, when not covered by Order 21 Rule 57, it is dismissal for default under Section 151 and in such a case the Court can, in exercise of its inherent powers under that section restore the application." 7. Similar view has been taken by this Court in other afore-stated case. The fact is that the learned counsel for the petitioner-decree-holder was busy in another court and that was a reason which prevented him from attending the instant execution application pending before the Executing Court. The impugned order, in the facts and circumstances of the case, does not seem to be proper and just and the same deserves to be set aside. 8. For the reasons stated above, the writ petition succeeds and the impugned order dated 9th March, 2010 stands set aside.