Karunakaran Nambiar P.T And Ors vs Syndicate Bank

Order restoring an execution petition that was dismissed for default, is under challenge in this civil revision petition by the judgment debtors.

The suit for money filed in the year 2003 was decreed on 23.02.2005. In the year 2007, the decree holder filed EP 4/2007 for realisation of the

decree debt by sale of immovable property. On one reason or the other, the proceedings were dragged or protracted. On 19.03.2018 to which date the

execution petition stood posted, consequent on the non-representation for the decree holder, the execution petition was dismissed for default.

Seeking restoration of the execution petition, the decree holder filed EA 75/2018 under Order XXI Rule 106 read with Section 151 of the Code of

Civil Procedure. As per the impugned order, the execution court allowed the application and restored the execution petition back to file.

The decree under execution having been passed on 23.02.2005, a fresh execution petition could not be maintained on the date of dismissal since it

would be beyond the period of limitation. The application seeking restoration was filed under Order XXI Rule 106 of CPC, well within the period of 30

days stipulated under Order XXI Rule 106(3) CPC. The execution court noticed that the EP stood posted to 19.03.2018 for payment of amounts by

the judgment debtor and not for any steps to be taken by the decree holder. The reason for non-representation/non-appearance of the counsel for the

decree holder on 19.03.2018, was the omission on the part of the counsel to whom the matter was entrusted for representation. The said fact is sworn

to by the counsel who was appearing for the decree holder Bank by way of an affidavit.

Restoration having been sought within the time stipulated under the statute, the execution court was right in having allowed the EA and restored the

execution petition back to file. The decisions relied on by the learned counsel for the petitioner has absolutely no application to the facts at hand since

those were cases where the pending execution petition was dismissed either as not pressed or for default and the subsequent execution petition filed

beyond the period of limitation was sought to be treated as an application seeking revival of the earlier execution petition or as continuation of the

earlier execution petition. As noticed supra, the present application is one filed under Order XXI Rule 106 CPC seeking restoration of the execution

petition dismissed for default; and the restoration application is filed well within the time stipulated.

This civil revision petition lacks merits and is accordingly dismissed. The EP being of the year 2007, the execution court shall expedite the EP and take

it to a logical conclusion at the earliest.