- (1.) JANARDAN Sahai, J. An application for execution of the decree was filed by the respondent Smt. Ameer Jahan Begum. It appears that 23-5-2003 was fixed in the execution case. It is common ground between the Counsel for the parties that the date was fixed for summoning the file of the Suit. That is also the finding of the Court below which has observed that earlier dates were also fixed for that purpose but the record had not been received and the execution was again posted on 23-5-2003 for the production of the record. On that date the executing Court passed an order dismissing the execution case in default. An application for restoration described as being under Order 21 Rule 106, CPC was filed by the respondent. The application was not filed within the period of 30 days time limit provided under Order 21, Rule 106 (3), CPC but was filed after about three months with an application to condone the delay. The application was allowed by the executing Court by its order dated 16-5-2005. Against that order a revision was filed which has been dismissed by order dated 24-4-2006. Both these orders have been challenged in this writ petition.
(2.) SRI A. K. Roy Counsel for the petitioner submitted that provisions of Section 5 of the Indian Limitation Act are not applicable to execution proceedings and therefore, the Courts below have committed an error in allowing the respondent's application under Order 21, Rule 106. Sub-rule (2) of Rule 105 of Order XXI, CPC provides that 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. In the present case the date fixed was not a date for hearing but a date for summoning the file. In this view of the matter the order of dismissal in default could not be treated as an order passed within the meaning of Order XXI, Rule 105 (2 ). That being so, the provisions of Rule 106 were not really attracted. In such a case the restoration application would lie under Section 151, CPC. The mere fact that the respondent wrongly described the application as one under Order 21, Rule 106 would not mean that is the provision which would govern the situation. Learned Counsel for the petitioner relied upon a decision of the Karnataka High Court in Smt. Vithabai G. Ghodake & Anr. v. United Western Bank Ltd. & Ors. , AIR 2003 Kant 266 (para 16 ). While considering the meaning of the word 'hearing' in the context of Rule 105 of Order XXI, the Karnataka High Court relying upon Interpretation of Statutes Eighth Edition by N. S. Bindra, at page 985, held that even if the case is posted for filing of the verified statement it has to be construed that the case has been posted for hearing for all purposes. It is in this real sense, said the Karnataka High Court that the meaning of 'hearing' has to be taken into consideration and therefore, the dismissal of the application comes within the meaning of Rule 105 (2) of Order XXI, CPC. The Karnataka High Court then held that even if it is construed that an application under Order XXI, Rule 106, CPC is not maintainable, it is open for the Court to exercise inherent powers under Section 151, CPC.
(3.) IN Khoobchand Jain & Anr. v. Kashi Prasad & Ors. , AIR 1986 MP 66, the executing Court had ordered issuance of a warrant of attachment of movable property on furnishing by the decree-holder of a list of movable properties but the decree- holders failed to submit the list and the Court adjourned the case to another date awaiting the execution of the warrant and on the adjourned date neither the decree- holders nor their Counsel appeared when the case was called out and the execution case was dismissed. It was held by the Madhya Pradesh High Court that the date was not a date for hearing within the meaning of Order XXI, Rule 105, CPC and the dismissal of the execution application, therefore, did not fall under Rule 105 (2), and consequently the provisions of Rule 106 were not attracted. The said case was considered by the Apex Court in Damodaran Pillai & Ors. v. South INdian Bank Ltd. , 2006 (2) JCLR 258 (SC) : 2005 (7) SCC 300, and was distinguished but not overruled. It was however held by the Apex Court that Section 5 of the Limitation Act cannot be invoked for condoning delay where an order has been passed dismissing an application under Order XXI, Rule 105, CPC. IN Radhakrishnan v. State of Kerala, W. P. (C) Nos. 5927 and 28645 of 2005, decided on 24-11-2005, the Kerala High Court also agreed with the view taken in Khoobchand's case. IN the Kerala case which has also been relied upon by the Court below the Execution Petition was ordered to be put up with the records on the date fixed. It was held that the dismissal of the Execution Petition in default was not under Order XXI, Rule 105, CPC but under inherent powers and a restoration application was maintainable under Section 151, CPC. This decision of the Kerala High Court with which I am in agreement applies to the facts of the present case. Sub-rule (1) of Rule 105 provides that the Court before which an application under Order XXI is pending may fix a day for the hearing of the application. It is thus clear that it is not every date fixed in a pending application which is a date for hearing. A date for hearing would be a date fixed by the Court for that purpose. A date for hearing would be one where the Court proposes to hear the case or to apply mind to the case. The power of dismissal of the application in the absence of the applicant provided under sub-rule (2) can be exercised on a day fixed for hearing or on a day to which the hearing has been adjourned. When the Court fixes a date for production of the file it does not fix a date for hearing within the meaning of sub-rule (1 ). If the record is not produced on that date and the Court fixes another date for the production of the record, such adjourned date would not be a date to which the hearing has been adjourned within the meaning of sub-rule (2) of Rule 105.;