Bhanwar Lal vs Gopal

N.K. Jain, J.—This is a decree-holder''s revision directed against the order dated 12.10.1992 passed by the learned Munsiff and Judicial Magistrate, 1st Class, Doongala whereby the learned Magistrate has dismissed the restoration application of execution application in default.

Brief facts of this revision are that one execution case No. 1/88 was pending and the same was dismissed on 4.7.1992 as the decree-holder and his advocate was absent The decree-holder moved an application u/s 151, CPC on 21.7.1992 alongwith an affidavit stating that he was ill and his Counsel Sajjan Singh had gone to Pratapgarh so he did not attend the Court and in the interest of justice, the delay may be condoned and execution application may be restored u/s 151, CPC but that too was dismissed. Hence, this revision.

This revision is pending since 13.1.1993 and notice was issued on 18.3.1993 but despite service none has appeared. Today the case has come up before me and I proceed to hear the case finally.

Mr. Cdla learned Counsel for the Petitioner submitted that the trial Court has erred in not restoring the execution application in view of Order XXI, Rules 105 and 106, Code of Civil Procedure. He has placed reliance on Khoobchand Jain and Another Vs. Kashi Prasad and Others,

I have heard learned Counsel for the Petitioner and perused the material on record, as also the relevant provisions of Order XXI, Rules 105 and 106, Code of Civil Procedure. When in case, the case is called for hearing and the decree-holder remains absent undisputedly the Court has power to dismiss the application in default. It is also true that execution application can be filed afresh if it is not barred by limitation. A perusal of Order XXI, Rule 106, CPC shows that the Court has power if the sufficient cause has been shown, the Court may set aside the ex parte order on such terms as it deems fit.

In the instant case, the Petitioner filed application for restoration on 21.7.1992 u/s 151, CPC and also filed an affidavit stating that he was ill and hospitalised and his Counsel was out of station on that date. The learned trial Court without considering the said aspect dismissed the application for restoration for want of showing any case-law. Thus, the learned trial Court has acted illegally and with material irregularity in not restoring the execution application particularly when the Court below has inherent powers though it is to be exercised very sparingly and as stated above under the facts and circumstances of the present case, the trial Court could have invoked inherent powers particularly when the application was made in time by explaining delay for not appearing in the Court and the affidavit has not been rebutted. The non-petitioner has also not appeared to rebut the contention before me also. If this order is allowed to stand then it will cause irreparable injury in as much as it will deprive the Petitioner to get the fruits of the decree. In view of this, the order passed by the learned Munsif and Judicial Magistrate dated 12.10.1992 is set aside and the execution application is restored subject to payment of cost of Rs. 200/- to the judgment-debtor and the case is sent back to the trial Court to decide it afresh. Both the parties are directed to remain present before the trial Court on 22.11.1994 and thereafter the trial Court will be free to decide the application after giving opportunity of hearing to both the parties as observed above in accordance with law.

The revision is allowed as indicated above.