JUDGMENT

AMIT RAWAL, J. –

C.M. No.21913-CII of 2016

1. The application is allowed.

2. Reply to the application for recalling along with Annexures P-5 to P-8 is taken on record.

C.M. No.10367-CII of 2016

3. This Court vide order dated 14.12.2015 had allowed the revision petition whereby the execution application bearing No.99 dated 01.04.2006 was dismissed in default on 03.03.2012 and the application for restoration filed on 21.07.2012 though was dismissed but allowed by this Court. The misc. application bearing No.10367-CII of 2016 was moved on behalf of the applicants-respondents/judgment debtors for recalling of the order by taking aid of the provisions under Order 21 Rules 105 and 106 CPC to contend that the limitation to seek the restoration of the application would be 30 days from the dismissal of the same and not from the date of knowledge and in support of aforementioned contention relied upon the ratio decidendi culled out by judgment of Hon’ble Supreme Court in Damodaran Pillai and others Vs. South Indian Bank Limited 2005(4) RCR (Civil) 132.

4. Mr. Rajesh Gupta, learned counsel appearing for the petitioner has put in appearance and filed the reply vide C.M. No.21913-CII of 2016. However, during the interregnum another misc. application No.16171-CII of 2016 for staying of the proceedings was filed wherein this Court passed order on 17.08.2016 directing the Executing Court to adjourn the hearing of the execution petition beyond the date fixed by this Court.

5. The question which arises for consideration is whether order dated 14.12.2015 can be recalled in view of the averments and submissions made by Mr. Kaushal, particularly in view of the provisions of law, referred to here-in-above. For the sake of brevity, Order 21 Rules 105 and 106 CPC reads as under:-

“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.

Explanation : An application referred to in sub-rule (1) includes a claim or objection made under rule 58.

106. Setting aside orders passed ex parte, etc.- (1) The applicant, against whom an Order is made under sub-rule (2) of 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 on 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 sub-rule (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 the applicant had knowledge of the order.”

The aforementioned provisions came to be debated in the judgment referred to above in Damodaran Pillai's case (supra) wherein it has been held that the application seeking restoration of the execution application has to be filed within a period of 30 days from the date of dismissal and not from the date of knowledge. However, this Court had allowed the revision petition noticing the fact that the lawyer of the decree-holder did not move application but the fact remains that the fresh application during the period of limitation can always be filed. I am in agreement with Mr. Kaushal that limitation would be 30 days from the date of dismissal of the same. The application was dismissed in default on 03.03.2012 whereas the application for restoration was filed on 21.07.2012 i.e. beyond the period of 30 days and even if the aforementioned application accompanied by application of seeking condonation, the same could not have been dealt with in view of the provisions mentioned above and the ratio decidendi referred to above.

I am of the view that the order passed on 14.12.2015 ordering restoration of the execution application No.99 dated 01.04.2006 would be treated as entertainment of the application as fresh application instead of restoration and this order of mine shall be construed as passed under peculiar facts and circumstances per incuriam and not as a judgment in rem.

While upholding the provisions of Order 21 Rules 105 and 106 and the ratio decidendi culled out from the judgment Damodaran Pillai's case (supra), I am of the view that since much water flowed after the disposal of the revision petition, I do not deem it appropriate to recall my order. Accordingly the application for recalling the order dated 14.12.2015 stands dismissed. The Execution Court is directed to proceed with the execution petition in accordance with law.

Order accordingly.

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