IMPORTANT POINT
The main legal point established in the judgment is the interpretation of 'hearing' in the context of dismissal of execution application and the applicability of Rule 106 of Order 21 of CPC.

ORDER :

1. The appellant/plaintiff has preferred this Misc. appeal against the judgment dated 04.10.2019 (Annexure A/1) passed in Civil Execution/M.J.C. No. Unregistered/2019 by which the learned Additional District Judge Dhamtari, District - Dhamtari (C.G.) has dismissed the Execution Application No. 16-B/2002 on account of delay and latches. The learned Executing Court has dismissed the application for execution on 19.04.2018 on account of absence of decree holder and non-payment of process fees and the application under Order 21 Rule 106 CPC has been filed on 17.05.2019 after delay of 17 months whereas the restoration application under Order 21 Rule 106 CPC should have been filed under Rule 106 within 30 days from the date of dismissal of execution case.

2. The appellant has filed Civil Suit before the learned Additional District Judge Dhamtari which was registered as Civil Suit No. 16-B/2002 for recovery of Rs. 2,18,000/- with interest. The learned trial Court vide judgment and decree dated 26.08.2002 allowed the suit and directed the decree holder to pay Rs. 2,18,000/- with interest from 02.09.1985 till the payment is actually paid. The plaintiff/appellant has filed an application for execution of said decree on 26.09.2012 and the executing court has directed the appellant to pay process fee for issuance of notice to the decree holder. The notice was served upon the judgment debtor on 05.12.2012, therefore, the executing court has directed the decree holder to pay process fee as well as list of immovable property for attachment and fixed the case on 30.01.2013. The execution proceedings were adjourned to various dates for the same purposes from 30.01.2013 till 19.04.2018 and on 19.04.2018 the learned trial court has dismissed the execution case on account of absence of the decree holder as well as non-compliance of the order of payment of process fee alongwith the list of immovable property.

3. Being aggrieved with this order the appellant moved an application for restoration under Order 21 Rule 106 CPC on 17.05.2019 mainly contending that the counsel has not informed him about the order of the Court to be complied by the decree holder, as such, the same could not be complied with by him, which has necessitated the learned Executing Court to dismiss the execution application. The appellant has also filed an application for condonation of delay mainly contending that since he was not aware about the dismissal of the case, as such he could not take steps within the stipulated time, therefore, he would pray for condonation of delay in filing the application. The learned Executing Court vide impugned order dated 04.10.2019 has dismissed the said application. Being aggrieved with this order the appellant has preferred present Misc. Appeal under Order 43 Rule 1(ja) of CPC.

4. The learned counsel for the appellant would submit that the impugned order (Annexure A-1) passed by the court below is perverse and not sustainable in law because the appellant has appeared in all the proceedings before the court below and there is only one default and the execution proceeding is dismissed for want of prosecution. The appellant is ready and willing to cure the default and make good the default committed by the appellant. It has been further contended that all the rules of procedure are handmaid of justice. The language employed by the draftsman of procedural law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should be ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by the express and specific language of the statute, the provisions of C.P.C or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet the extraordinary situations in the ends of justice. It has been further contended that the procedural defects and