1. Confusion and complexities have been particularly confounded in the circumstances of this case, as a concise account thereof will disclose. Execution proceedings have been initiated by Deutsche Ranco GmbH against the Respondent, Shri Mohan Murti, who appears before us in person. On the hearing held on 20.3.2007, in EA No.356/2006 in Ex. No.58/1994, it has been minuted that – “Counsel for the decree holder submits that he has instructions to withdraw from the case. He submits that he would be moving an application for seeking discharge. At this request, adjourned to 07/08/2007”. On the next date of hearing, EA No.356/2006 was once again listed for appropriate consideration of the Court. The Order passed on that date reads thus:-

On the last date of hearing i.e. 20/03/2007 counsel for the decree holder had informed the court that he had instructions to withdraw from the case for which he wanted to file the application seeking discharge from the case.

No such application has been filed. Neither the counsel nor the decree holder is present. Hence the execution is dismissed in default.

2. Placed in this predicament, learned counsel for the Decree Holder filed EA No.36/2008 under Order IX Rule 4 of the Code of Civil Procedure, 1908 (CPC for short) for restoration of the Execution Petition. On 25.1.2008, the learned Single Judge was pleased to recall the Order dated 7.8.2007, taking support from H.K. Goods Transport Pvt. Ltd. –vs- Ramesh Chander Bammi, 126 (2006) DLT 404 as well as Babu –vs- L. Dewan Singh, AIR 1952 All. 749. The Dismissal Order was recalled without issuing notice to the Respondent/Judgment Debtor. Notice of EA No.356/2006 was thereupon ordered to be issued.

3. The Judgment Debtor/Respondent thereupon filed an Application seeking a Review of the Order dated 25.1.2008 by which the Dismissal had been recalled. The Review has been allowed by Order dated 28.7.2009, and it is these Orders which have been assailed before us.

4. The confusion, which we have first mentioned above, is because although the Review has been heard and allowed, an application for substitution of the Decree Holder, Deutsche Ranco GmbH by Invensys Deutschland GmbH has not been decided; it remains in suspended animation. This has created a piquant situation as the Respondent/Judgment Debtor has endeavoured to impress upon us that the Appeal is improper as the proper party/petitioner has not been adjudicated. In this regard, learned counsel for the Appellant has submitted that the erstwhile Decree Holder has merged with Invensys Deutschland GmbH and hence, by operation of law, Invensys Deutschland GmbH is competent to step into the shoes of the former. As no decision has been returned by the learned Single Judge on this legal nodus, we think it proper not to make any further observations. However, we think that if the Appeal is dismissed on this ground, it will result in a miscarriage of justice. When the learned Single Judge was seised with the Review, he ought to have first decided the locus standi of the parties before him. We clarify that the matter is left open so as to enable the learned Single Judge to come to a judicial conclusion as expeditiously as possible.

5. We have already noted that the learned Single Judge had proceeded under Order IX Rule 4 of the CPC on being convinced that notice of that application was not required to first issue to the non-applicant, and secondly on his being satisfied that there was sufficient cause for recalling the Dismissal Order and thereby restoring Execution Proceedings. The learned Single Judge has held that Order IX Rule 4 of the CPC does not apply and in this regard we completely concur with his conclusion.

6. We, however, are unable to affirm the analysis of the learned Single Judge to the effect that Rules 105 and 106 of Order XXI of the CPC had come into play at the stage when on 7.8.2007 Execution Proceedings had been dismissed in default as well as for non-prosecution. Our atte