ORDER : 1. The appellant/plaintiff has preferred this Misc. appeal against the judgment dated 04.10.2019 (Annexure A/1) passed in Civil Execution/M.J.C. No. Unregistered/2019 by which the learned Additional District Judge Dhamtari, District - Dhamtari (C.G.) has dismissed the Execution Application No. 16-B/2002 on account of delay and latches. The learned Executing Court has dismissed the application for execution on 19.04.2018 on account of absence of decree holder and non-payment of process fees and the application under Order 21 Rule 106 CPC has been filed on 17.05.2019 after delay of 17 months whereas the restoration application under Order 21 Rule 106 CPC should have been filed under Rule 106 within 30 days from the date of dismissal of execution case. 2. The appellant has filed Civil Suit before the learned Additional District Judge Dhamtari which was registered as Civil Suit No. 16-B/2002 for recovery of Rs. 2,18,000/- with interest. The learned trial Court vide judgment and decree dated 26.08.2002 allowed the suit and directed the decree holder to pay Rs. 2,18,000/- with interest from 02.09.1985 till the payment is actually paid. The plaintiff/appellant has filed an application for execution of said decree on 26.09.2012 and the executing court has directed the appellant to pay process fee for issuance of notice to the decree holder. The notice was served upon the judgment debtor on 05.12.2012, therefore, the executing court has directed the decree holder to pay process fee as well as list of immovable property for attachment and fixed the case on 30.01.2013. The execution proceedings were adjourned to various dates for the same purposes from 30.01.2013 till 19.04.2018 and on 19.04.2018 the learned trial court has dismissed the execution case on account of absence of the decree holder as well as non-compliance of the order of payment of process fee alongwith the list of immovable property. 3. Being aggrieved with this order the appellant moved an application for restoration under Order 21 Rule 106 CPC on 17.05.2019 mainly contending that the counsel has not informed him about the order of the Court to be complied by the decree holder, as such, the same could not be complied with by him, which has necessitated the learned Executing Court to dismiss the execution application. The appellant has also filed an application for condonation of delay mainly contending that since he was not aware about the dismissal of the case, as such he could not take steps within the stipulated time, therefore, he would pray for condonation of delay in filing the application. The learned Executing Court vide impugned order dated 04.10.2019 has dismissed the said application. Being aggrieved with this order the appellant has preferred present Misc. Appeal under Order 43 Rule 1(ja) of CPC. 4. The learned counsel for the appellant would submit that the impugned order (Annexure A-1) passed by the court below is perverse and not sustainable in law because the appellant has appeared in all the proceedings before the court below and there is only one default and the execution proceeding is dismissed for want of prosecution. The appellant is ready and willing to cure the default and make good the default committed by the appellant. It has been further contended that all the rules of procedure are handmaid of justice. The language employed by the draftsman of procedural law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should be ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by the express and specific language of the statute, the provisions of C.P.C or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet the extraordinary situations in the ends of justice. It has been further contended that the procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure a handmaiden of justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use and would pray for allowing the Misc. appeal and the execution proceeding in execution Case No. 16-B/2002, before learned A.D.J. Dhamtari, may kindly be restored, in the interest of justice. 5. Learned counsel for the respondent would submit that the Executing Court has rightly dismissed the execution case on account of lapses on part of the Appellant/Plaintiff. He would further submit that the impugned order dated 04.10.2019 suffers from no infirmity and illegality as has been claimed by Appellant. 5. Learned counsel for the respondent would submit that the Executing Court has rightly dismissed the execution case on account of lapses on part of the Appellant/Plaintiff. He would further submit that the impugned order dated 04.10.2019 suffers from no infirmity and illegality as has been claimed by Appellant. The said order is just, fair and legal and ought to be upheld by this Hon'ble Court. He would further submit that execution proceeding was instituted by Appellant on 26.09.2012 in relation to the judgment/ decree dated 26.08.2002 i.e. after a lapse of about 10 years, which was then registered and Appellant was directed to pay court fee within three days, but despite several opportunities the appellant has not complied with the order, therefore, learned executing court has not committed any illegality in dismissing the restoration application. He would further submit that in view of Order 21 Rule 106 of CPC the limitation of 30 days has been prescribed and since no power of condonation has been provided under the rules, the learned executing court has not committed any illegality in dismissing the application for restoration. To substantiate the submissions he would refer to the judgment of the Hon’ble Supreme Court in case of Damodaran Pillai v. South Indian Bank Ltd, (2005) 7 SCC 300 . 6. It has been further submitted that the appellant has allowed his cause to suffer for the reason of his own negligence and lackadaisical approach, he is not entitled for equitable relief from this Hon'ble Court. He would further submit that a litigant, who is not vigilant and prompt towards his cause, must not be allowed to claim equity before a Court of Law and would pray for dismissal of the appeal. 7. I have heard leaned counsel for the parties and perused the record of execution case as well as record of the civil suit No. 16-B/2002 decided by the learned Additional District Judge, Dhamtari. 8. Learned counsel for the appellant would submit that Order 21 Rule 105 (2) of the C.P.C. deals for dismissal of execution application only in a case, when the matter is fixed for hearing and the applicant/Decree Holder does not appear. In this case, the Execution proceeding before the Learned trial court was dismissed on 19/04/2018 (Annexure A-3) for "non-appearance of the appellant/Decree Holder and non-payment of Process fee". In this case, the Execution proceeding before the Learned trial court was dismissed on 19/04/2018 (Annexure A-3) for "non-appearance of the appellant/Decree Holder and non-payment of Process fee". Since non-payment of process fee is not the legislation prescribed under Order 21 Rule 105 (2) of the C.P.C, the only point to be considered for dismissal of execution proceeding is non-appearance of decree holder/applicant, when the execution proceeding is fixed for hearing. The word, "Hearing" has been examined by the Hon’ble High Court of Madhya Pradesh in the matter of Khoobchand Jain V/s. Kashi Prasad, reported in (1986) 0 JLJ 42 or (1986) 0 MPLJ 52 and in view of the law laid down by the Hon’ble High Court of Madhya Pradesh that payment of process fee and submission of list of immovable properties cannot be fall within the ambit of Rule 106, therefore, the learned executing court has committed illegality in not condoning the delay in preferring the application. He would further submit that the limitation for restoration of execution proceeding as prescribed under Order 21 Rule 106 (3) of the C.P.C. is not applicable, when the appellant/applicant had not taken steps for payment of process fee. The restoration for such a situation would fall within the ambit of Section 151 of the Civil Procedure Code. The same issue is clarified by the Hon'ble Bombay High Court (Para No. 13), in the matter of Botanium Ltd. Vs. Babu Raghu (Since deceased) through Legal Heir, reported in 2019 (2) Mh.L.J. 287 and would pray for allowing the appeal. 9. On the other hand learned counsel for the respondent would submit that the Limitation Act is not Applicable to an application filed under Order 21 Rule 106 of C.P.C, as such the learned executing court was justified in rejecting the application for restoration of execution application, as the application was filed beyond the period of 30 days. To substantiate his submission he would refer to the judgment passed by the Hon'ble Supreme Court in the case of Damodaran Pillai v. South Indian Bank Limited (2005) 7 SCC 300 . He would further submit that from bare perusal of Section 5 of the Limitation Act, 1963, it is quite vivid that the same is not applicable to Order XXI of the Code of Civil Procedure, 1908 and would pray for dismissal of the appeal. He would further submit that from bare perusal of Section 5 of the Limitation Act, 1963, it is quite vivid that the same is not applicable to Order XXI of the Code of Civil Procedure, 1908 and would pray for dismissal of the appeal. To substantiate his submissions he has referred the judgments of Hon'ble Supreme Court: Hameed Joharan v. Abdul Salam, (2001) 7 SCC 573 , Hon'ble High Court of Chhattisgarh (DB): Bhimrao Ramteke vs. Kailash Kedia and Anr. Reported in ILR 2019 Chh 2284/AIR Online 2019 Chh 838, Hon'ble High Court of Delhi: Mitender Pal Sigh Solanki v. Surendar Singh and Anr, Reported in 2017 SCC OnLine Delhi 12705, Hon'ble High Court of Delhi (DB): Man Singh v. Gaon Sabha Jindpur and Ors Reported in 2012 SCC Online Del 442. 10. From the above submissions made by the parties the point to be determined by this Court, whether the appearance of the decree holder and submission of list of immovable property for attachment will fall within the ambit of hearing to attract provisions of Rule 106 of Order 21 of CPC? 11. To appreciate the determinable point, it is expedient for this Court to extract Rule 105 and 106 CPC of Order 21:- “Order 21 Rule 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 parte and pass such order as it thinks fit. Order 21 Rule 106 : Setting aside order passed ex parte, etc. (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 parte and pass such order as it thinks fit. Order 21 Rule 106 : Setting aside order passed ex parte, etc. (1) The applicant, against whom an order is made under sub-rule (2) 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 or such terms as to costs, or otherwise as it thinks fit, and shall appoint a day for the further hearing of the application. (2) No order shall be made on an application under subrule (1) unless notice of the application has been served on the other party. (3) An application under sub-rule (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 applicant had knowledge of the order.” 12. On perusal of above Rules, it reveals that Rule 105 contemplates hearing of application. Limitation prescribed under Rule 106 would be relevant if order is made under sub Rule 2 of Rule 105 of Order 21 of C.P.C.. Therefore, in the facts of this case, there is no question of invoking the power under Order XXI Rule 105 and 106 of C.P.C., as the execution proceeding was dismissed in default and non-payment of process fee for attachment of immovable property which cannot be restored by filing an application under Order 21, Rule 106 of C.P.C. and provision in Section 151 is the only provision to consider such prayer. The record of the case could demonstrate that execution proceeding was dismissed for want of prosecution and for default in payment of process fee, as such it cannot be said that the said date was fixed for hearing of the matter. The record of the case could demonstrate that execution proceeding was dismissed for want of prosecution and for default in payment of process fee, as such it cannot be said that the said date was fixed for hearing of the matter. The Rule 105 and 106 will come into picture when the matter is set down for hearing and in the instant case the date which was fixed in the execution proceeding for taking steps and since the steps were remained to be taken, the execution proceedings were dismissed for want of prosecution, therefore, the learned executing Court has committed illegality in applying the Rule 106 of Order 21 CPC. The tenure of the order dated 19.04.2018 would clearly demonstrate that the execution application was dismissed on a day which was not fixed for hearing, the order of dismissal could not be an order under Rule 105 (2), therefore, there was no occasion for executing court to apply Rule 106 of Order 21 CPC. 13. The Hon’ble High Court of Madhya Pradesh in case of Khoobchand Jain and Anr. Vs. Kashi Prasadand & others reported in 1986 MPLJ 52 has examined the provisions of Rule 105 and 106 of Order 21 CPC and has held as under:- “11. Rule 105(2) of Order 21 also contemplates dismissal of applications but only when the applicant does not appear when the case is called for hearing. The meaning of the word 'hearing' has been explained in many cases in relation to dismissal of suits under Order IX. In Maung Ahmin v. Maung Saung AIR 1938 Rangoon 360, while fixing the suit for evidence "of parties, the Court directed process-fee and a list of witnesses to be filed by a date mentioned in the order-sheet. The plaintiff failed to pay process-fee and also failed to file the list of witnesses. On account of these failures, the Court dismissed the suit for default. Explaining the meaning of the word 'hearing', the Court observed that it refers to hearing of the case by the Court and does not include the disposal of routine matter which is within the power of-the Court. The Court held that a date fixed solely as the last day on which a list of witnesses may be filed is not a date fixed for 'hearing'. 12. The Court held that a date fixed solely as the last day on which a list of witnesses may be filed is not a date fixed for 'hearing'. 12. In Rambabu v. Bhagirath Prasad, 1983 Jab LJ 535 the words 'hearing of suit' were examined in the light of earlier decisions and this Court held that when a suit is merely fixed for considering an interlocutory matter, it cannot be said that the suit is fixed for hearing. In that case after framing of the issues, the Court fixed the case for submission of a list of witnesses of the parties. On that day, the plaintiff submitted a list of their witnesses and also submitted an application under Rule 10 of Order 13, a copy of which was supplied to the defendant and the case was adjourned to a date for reply and arguments on the said application. On that date neither the defendant nor his counsel appeared. Therefore, the Court proceeded ex parte and after recording ex parte evidence, fixed the case for delivery of judgment. Before delivery of judgment, the defendant made an application to set aside the ex parte proceedings inter alia submitting that since the case was not fixed for 'hearing', the Court had no jurisdiction to proceed ex parte. The Court held that before proceeding ex parte on failure of a party to appear what is necessary is that the date should have been for hearing of the suit. 14. The word “hearing” has comeup for consideration before the Hon’ble High Court of Madhya Pradesh in case of Rambabu Ghasilal Goyal vs. Bhagirath Prasad Basantilal, 1983 MPLJ 455 has held as under:- “7. ….The law on the point has been further laid down in Manohar Dass v. Birandari Sheikhupurain reported in AIR 1936 Lah 280 thus: "By the hearing of the suit is meant the hearing at which the Judge would be either taking evidence or hearing arguments or would have to consider questions relating to the determination of the suit which would enable him finally to come to an adjudication upon it. In a case where a Commissioner is appointed and is asked to submit his report by a certain date and the Commissioner before that date files an application praying for an extension of time, it is for the Court to extend the time which the Commissioner asks for or it can refuse it. The parties have nothing, to do with the matter. The date on which the Court expected the report of the Commissioner is not "the date of the hearing." In Balmukund Ram Marwari v. Madho Prashad reported in AIR Pat 714, where the suit was adjourned for appointment of a guardian on plaintiff's petition and the suit was dismissed in default of the plaintiff's appearance, it was held that the suit could not be so dismissed for default, nor the date so fixed could be regarded to be a date fixed for disposal of the suit.” 15. From the above stated law laid down by the Hon’ble High Court of Madhya Praesh in case of Rambabu (Supra) and considering the facts of the case it is quite vivid that on 19.04.2018, the execution case was fixed for submission of list of immovable property which cannot be termed as hearing, as neither the judge has to take evidence or to hear arguments or have to consider questions relating to the determination of the suit which would enable finally to come to an adjudication upon it. Thus, application of Rule 106 by the learned executing Court is suffers from illegality. 16. Similarly, the Hon’ble High Court of Bombay in case of Botanium Limited (Supra) has examined the scheme of Rule 105 and 106 and has held in paragraph 12, 13 and 17 as under:- “12. Under Order XXI Rule 105 of CPC, the Court is empowered to fix a date for hearing of the execution application. It further provides that if on the date fixed or on any date the hearing is adjourned, the applicant does not appear when the case is called for hearing, the Court may make an order that the application be dismissed. It further provides that if on the date fixed or on any date the hearing is adjourned, the applicant does not appear when the case is called for hearing, the Court may make an order that the application be dismissed. Order XXI Rule 106 of CPC provides that when an order is made under sub-rule 2 of Rule 105 Order XXI or sub-rule 3 of that Rule, such party against whom such order is passed may apply to such Court to set aside such an order and if he satisfies the Court that there was sufficient cause for his non-appearance, the Court shall set aside the order on such terms it thinks fit and shall place the matter on the day for further hearing of the application. Sub-rule 3 of Rule 106 of Order XXI further provides that an application under subrule 1 of Rule 106 of Order XXI shall be made within 30 days from the date of the order or in case an ex-parte order, if a notice was not duly served, within 30 days from the date when the applicant had knowledge of the order. 13. In my view, since the record clearly indicates that on the date of the said execution application, the Executing Court had not fixed the execution application for hearing under Order XXI Rule 105 of CPC, the said execution application has been dismissed on the ground that no steps were taken by the petitioner. In my view, the time of 30 days prescribed in sub-rule 3 of Rule 106 of Order XXI of CPC for making an application for setting aside the ex-parte order would not be attracted in such a situation. There would be thus no limitation prescribed for making an application for setting aside the order dismissing the execution application dismissed due to the steps not having been taken by the decree holder in the execution application. Such application shall be filed within reasonable period. 17. A perusal of the order passed by the learned Executing Court indicates that the learned Judge has rejected the said application for condonation of delay on the ground that section 5 of the Limitation Act was not applicable to the restoration proceedings under Order XXI Ruled 106 of CPC. Such application shall be filed within reasonable period. 17. A perusal of the order passed by the learned Executing Court indicates that the learned Judge has rejected the said application for condonation of delay on the ground that section 5 of the Limitation Act was not applicable to the restoration proceedings under Order XXI Ruled 106 of CPC. In my view, since the provisions of Order XXI Rule 106 of CPC, were not attracted in this case, in view of the execution application itself not having been placed on board for hearing, reference to section 5 of the Limitation Act, 1963 in the impugned order shows perversity.” 17. The respondent has referred to paragraph 11, 14 and 16 of the judgment of Hon’ble Supreme Court in case of Damodar Pillai (Supra) wherein the Hon’ble Supreme Court has held as under:- “11. The learned Judge, however, while arriving at the said finding failed and/or neglected to consider the effect of sub-rule (3) of Rule 106. A bare perusal of the aforementioned rule will clearly go to show that when an application is dismissed for default in terms of sub-rule (2) of Rule 105, the starting point of limitation for filing of a restoration application would be the date of the order and not the knowledge thereabout. As the applicant is represented in the proceeding through his advocate, his knowledge of the order is presumed. The starting point of limitation being knowledge about the disposal of the execution petition would arise only in a case where an ex parte order was passed [Ed.: Such a case would arise only if an order is passed by the court under S. 105(3) CPC.] and that too without proper notice upon the judgment debtor and not otherwise. Thus, 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 said order and not thereafter. In that view of the matter, the date when the decree-holder acquired the knowledge of the order of dismissal of the execution petition was, therefore, wholly irrelevant. 14. It is also trite that the civil court in the absence of any express power cannot condone the delay. In that view of the matter, the date when the decree-holder acquired the knowledge of the order of dismissal of the execution petition was, therefore, wholly irrelevant. 14. It is also trite that the civil court in the absence of any express power cannot condone the delay. For the purpose of condonation of delay in the absence of applicability of the provisions of Section 5 of the Limitation Act, the court cannot invoke its inherent power. 16. An application under Section 5 of the Limitation Act is not maintainable in a proceeding arising under Order 21 of the Code. Application of the said provision has, thus, expressly been excluded in a proceeding under Order 21 of the Code. In that view of the matter, even an application under Section 5 of the Limitation Act was not maintainable. A fortiori for the said purpose, inherent power of the court cannot be invoked.” and would submit that the learned executing Court has no power to condone delay is misconceive as in the present facts of the case, the judgment of Damodar Pillai (Supra) in not applicable to the present facts of the case. The execution case in case of Damodar Pillai (Supra) was set down for hearing which was dismissed for default. Whereas in the present case the execution proceeding was not set down for hearing as evident from the records and the order dated 19.04.2018. 18. In view of the above factual and legal position, it is quite vivid that execution proceedings before the learned Additional District Judge Dhamatari was not set down for hearing on 19.04.2018 as the execution case was fixed for submission of list of immovable property which cannot be treated as hearing of the suit. Thus, the learned executing Court has committed illegality in not restoring the execution proceedings pending before it. Accordingly, the order dated 04.10219 (Annexure A/1) passed in Civil Execution Case No. MJC/2019 is set aside as well as order dated 19.04.2018 passed in Execution Case No. 16-B/2002 are set aside and the execution case No. restored to its original number 16-B/2002. The learned executing Court is directed to proceed further in the execution proceedings in accordance with law. It is also directed that the executing court will make an endeavor to complete the execution proceedings within outer limit of one year from the date of appearance of the parties. The learned executing Court is directed to proceed further in the execution proceedings in accordance with law. It is also directed that the executing court will make an endeavor to complete the execution proceedings within outer limit of one year from the date of appearance of the parties. It is directed that the learned executing Court Dhamarti will issue notice to the parties on 31.07.2024 for their appearance and the one year will be counted from the date the decree holder and judgment debtor appeared before the executing Court. 19. It is made clear that this Court has not expressed any opinion on the merit of the case, it is for the executing court to proceed in accordance with law. This Court has called upon the records of the court below that may be sent back to the executing Court forthwith. 20. Resultantly, the Misc. Appeal is allowed. 21. Pending interlocutory application, if any, shall stand disposed of.