Bengal Investment Limited vs Sankar Das

Manojit Mandal, J

Challenge is to the order dated 30.03.2019 passed by the learned Civil Judge (Junior Division), 5th Court, Howrah in Title Execution Case No. 12 of 2014, thereby rejecting an application under Order XXI Rule 106 read with Section 151 of the Code of Civil Procedure filed by the decree holder/petitioner.

The petitioner/decree-holder as plaintiff filed a suit for eviction and for recovery of khas possession being Title Suit No. 177 of 2009 against the judgment debtor /opposite party before the Court of learned Civil Judge (Junior Division), 5th Court, Howrah. The judgment debtor /opposite party neither entered appearance nor filed written statement against the plaint and as such the said suit proceeded ex parte. Subsequently, the petitioner got the ex parte judgment and decree in the said suit and petitioner/decree-holder initiated execution proceeding being Title Execution Case No. 12 of 2014. Due to the laches of the learned Advocate appearing for the decree-holder/petitioner, the said execution case was dismissed for default on 19.03.2016 and, accordingly, the decree-holder/petitioner filed an application under Order XXI Rule 106 read with Section 151 of the Code of Civil Procedure for restoration and recalling of the order of dismissal. The said application filed by Decree holder/petitioner for restoration and recalling of the order of dismissal was rejected by the order impugned. So, the petitioner filed this application.

Having considered the submissions of the learned Advocate and on perusal of the materials on record and the impugned order, it appears that the petitioner got the ex parte decree in connection with Title Suit No. 177 of 2009 and the Execution Case being Title Execution Case No. 12 of 2014 was initiated by the petitioner. On 19.03.2016 the said execution case was dismissed for default. The application under Order XXI and Rule 106 read with Section 151 of the Code of Civil Procedure for restoration and recalling of order of dismissal was filed on 15.09.2018, i.e. after a period of two and half years of dismissal. Sub-Rule (3) of Rule 106 of Order XXI of the Code of Civil Procedure runs as follows:-

" (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 the applicant had knowledge of the order."

On a fair reading of Sub-Rule (3) of Rule 106 of Order XXI of the Code of Civil Procedure, it is clear 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 petitioner was represented in the proceeding through his Advocate, his knowledge of the order is presumed. The starting point of limitation being disposal of the execution petition would arise only in a case where an ex parte order was passed and that too without proper notice upon the judgment debtor not otherwise. Thus, if an order has been passed dismissing an application was default under sub-rule (2) of Rule 105, the application for restoration thereof must be filed only within a period of thirty (30) days from the date of the said order and not thereafter. In that view of matter, the date when the decree-holder acquired knowledge of the order of dismissal the execution petitioner was, therefore, wholly irrelevant.

In such circumstances, I hold that the learned Trial Judge has rightly exercised the discretionary power. I am of the view that the matter does not call for any interference at all. The learned Trial Judge has passed the order within his right and it cannot be stated that he has caused miscarriage of justice in rejecting the said application.

Accordingly, I am of the view that there is no scope of interference with the impugned order. Therefore, this application is devoid of merits and is, therefore, dismissed.

Considering the circumstances, there will be no order as to costs.

Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.