- (1.) When Sessions Division, Gurdaspur was bifurcated and Pathankot Sessions Division was born in the recent past the petitioners' suit was one amongst thousands of cases transferred from Gurdaspur to Pathankot. The petitioners are decree-holders of the Gurdaspur Court in execution proceedings transferred to Pathankot. The decree was passed in a suit for permanent injunction restraining the defendant Wakf Board from interfering in the peaceful possession of the petitioners in the suit property. On April 26, 2013, the petitioners say they were present in court at Pathankot but their counsel engaged at Gurdaspur could not appear for reasons which may not be far too seek resulting from transfer of the case from one jurisdiction to the other. When counsel could not appear, the petitioners claim that they were present in Court though their presence was not recorded in the order sheet. They waited to know what order was passed by the learned trial court and came to learn in the late afternoon that the case was dismissed in default for non-appearance of counsel. They say that they apprised their counsel of the proceedings immediately of the fate of their case but nothing could be done except to move for restoration of the case by setting aside the order. Thereupon, two days later and within the time prescribed, an application was moved for setting aside of the order dismissing the execution proceedings in default of appearance. This application has been put into the throes of an independent minitrial where issues were framed, evidence led by both sides and after a legal battle the application ended in dismissal of the execution proceedings on April 28, 2014. The first order dismissing the execution proceedings in default have been affirmed. This Court is at a loss to understand why so much judicial time was spent for nothing. The plaintiffs are decree holders and their execution proceedings have been terminated resulting in undue advantage to the defendants. There is a specific statutory provision under Order 21 Rule 105(1) Civil Procedure Code under which the Execution Petition could be restored on sufficient cause being shown for non-appearance. The restoration of the dismissal of an execution petition for default comes clearly within the scope of Order 21, Rule 105(1) read with Rule 104 Civil Procedure Code and the restoration was certainly possible under that rule. The order passed in default of appearance of counsel could have easily been recalled which would have caused hardly any prejudice to the judgment debtor. The dismissal of the application for restoration of the proceedings will result in inconvenience and hardship to the petitioners who will be left high and dry without effective orders to enforce protection and which may compel them to bring a fresh suit and multiply litigation.
(2.) For the foregoing reasons, the petition is accepted and both the orders are set aside. The execution petition stands restored. Trial Court to proceed accordingly with the execution proceedings.;