Case Note & Summary
The High Court of Judicature at Bombay considered a writ petition filed by a decree holder challenging the dismissal of his application for restoration of an execution application. The litigation arose from a decree for specific performance dated 8 January 2007 in favour of the petitioner. The petitioner filed execution proceedings being Regular Darkhast No.06/2010 on 26 February 2010. The executing court issued notice to the judgment debtor, who appeared and sought time. Over several years, the matter was adjourned for various purposes, including filing of say, appointment of court commissioner, deposit of commission fee, and mediation. On 2 January 2012, the executing court referred the matter to the mediation centre, and the case was repeatedly adjourned for mediation report and compliance. On 1 September 2014, the executing court passed an order dismissing the execution application for default in taking steps, recording that the decree holder and his advocate were absent and no steps were taken. The decree holder filed an application on 9 October 2014 for restoration of the execution application. The executing court dismissed that restoration application on 25 April 2022, treating it as an application under Section 151 of the Code of Civil Procedure, 1908 (CPC). Aggrieved, the petitioner filed Writ Petition No. 10593 of 2023, and on 30 August 2023, the High Court issued notice for final disposal. The primary legal question was whether the writ petition was maintainable in view of an alternative statutory appeal under Order XLIII Rule 1(ja) CPC. The respondent raised a preliminary objection that the impugned order rejecting restoration was appealable under that provision because restoration of an execution application is governed by Order XXI Rules 105 and 106 CPC. The petitioner contended that the execution application was never fixed for hearing under Rule 105 and was not dismissed under that rule; the restoration was sought and decided solely under Section 151 CPC, so no appeal lay. The High Court examined the roznama and found that on 1 September 2014 the application was not listed for hearing as contemplated under Rule 105 of Order XXI; there was neither an order under sub-rule (2) of Rule 105 nor an application under Rule 106. The executing court had exercised inherent powers under Section 151. The court reviewed precedents, including Damodaran Pillai v. South Indian Bank Ltd, Suglabai Jaishete v. Rangarao Govindrao, Shaikh Chand Ahmed v. Zaitunbee Shaikhlal, Botanium Ltd v. Babu Raghu, and The Commissioner, Nashik Municipal Corporation v. M/s. R.M. Bhandari, which established that when an execution application is not fixed for hearing under Rule 105, its dismissal is under Section 151 and restoration also lies under Section 151, not under Rule 106. Consequently, an order rejecting such restoration is not appealable under Order XLIII Rule 1(ja) CPC. The court distinguished Dattatraya Jog as applying only to dismissals under Rule 105. The court therefore rejected the preliminary objection and held that the impugned order was not appealable and the writ petition was maintainable. The court then proceeded to consider the petitioner's merits arguments, including illness of the power of attorney holder, absence of any direction to take steps, referral to mediation and awaiting report, and that the dismissal was erroneous. The provided text ends before the court's final operative order on merits; no final direction is available in the excerpt.
Headnote
A) Civil Procedure - Appealability - Restoration of Execution Application - Order XLIII Rule 1(ja) read with Order XXI Rules 105 and 106, Code of Civil Procedure, 1908 - If an execution application was dismissed under Rule 105 of Order XXI after being fixed for hearing, restoration lies under Rule 106 and an order on such restoration application is appealable under Order XLIII Rule 1(ja). But if dismissal was under inherent powers under Section 151 CPC, the restoration application also lies under Section 151, and rejection is not appealable under Order XLIII Rule 1(ja). The executing court dismissed the execution application in default on 1 September 2014 without listing it for hearing under Rule 105, and the restoration application was decided under Section 151; therefore, the impugned order was not appealable and the preliminary objection was rejected. Held that the writ petition was maintainable. (Paras 4-5, 11-12) B) Civil Procedure - Inherent Powers - Restoration of Execution Application Dismissed for Default - Section 151, Code of Civil Procedure, 1908 - When an execution application is not fixed for hearing under Rule 105 of Order XXI and is dismissed for default in taking steps, the executing court can exercise inherent powers under Section 151 to restore it, without attracting the thirty-day limitation under Rule 106(3). The court relied on Damodaran Pillai, Suglabai, Shaikh Chand, Botanium, and Nashik Municipal Corporation, holding that Rule 105/106 do not apply to dismissal under inherent powers. Held that the restoration application was rightly treated as one under Section 151 and no limitation prescribed under Rule 106(3) applied. (Paras 6-9) C) Civil Procedure - Execution Proceedings - Nature of Execution Application - Order XXI, Code of Civil Procedure, 1908 - An execution application is not a substantive proceeding or lis; it arises when a judgment debtor fails to comply with the decree. Rule 105 of Order XXI applies only to applications specifically provided under Rule 97 onwards, not to all applications under Order XXI. Therefore, dismissal of execution application for default of steps when not fixed for hearing under Rule 105 fell outside Rule 105, and restoration under Section 151 was appropriate. Held that executing court had jurisdiction to restore under Section 151. (Paras 7-9) D) Civil Procedure - Maintainability of Writ Petition - Preliminary Objection - Order XLIII Rule 1(ja), Code of Civil Procedure, 1908 - Since the impugned order rejecting restoration application passed under Section 151 was not appealable under Order XLIII Rule 1(ja), the writ petition challenging it was maintainable. The respondent's reliance on Dattatraya Jog was distinguishable because that case concerned dismissal under Rule 105. Held that preliminary objection was rejected. (Paras 10-12)
Issue of Consideration
Whether a writ petition is maintainable against an order rejecting an application for restoration of an execution application passed under Section 151 CPC, or whether an appeal lies under Order XLIII Rule 1(ja) CPC.
Final Decision
The High Court rejected the respondent's preliminary objection, holding that the impugned order passed under Section 151 CPC rejecting restoration was not appealable under Order XLIII Rule 1(ja) CPC; accordingly, the writ petition was maintainable. The court then proceeded to consider the petitioner's merits arguments; the final operative order on restoration is not set out in the provided judgment text.
Law Points
- If an execution application is dismissed under Rule 105 of Order XXI CPC after being fixed for hearing
- restoration lies under Rule 106 and an order on such restoration is appealable under Order XLIII Rule 1(ja) CPC. If an execution application is dismissed by exercising inherent powers under Section 151 CPC
- its restoration also lies under Section 151 CPC
- and an order rejecting such restoration is not appealable under Order XLIII Rule 1(ja) CPC. Order XXI Rules 105 and 106 CPC apply only when the execution application was fixed for hearing and dismissed under Rule 105. A restoration application filed after dismissal under Section 151 CPC is not subject to the thirty-day limitation under Rule 106(3) of Order XXI CPC. An execution application is not a substantive proceeding or lis
- it arises when a judgment debtor fails to comply with the decree. Rule 105 of Order XXI CPC does not apply to all applications under Order XXI but only to those specifically provided under Rule 97 onwards.
