Technical objections should not result in the dismissal of suits involving substantive rights, and the application of Section 151 CPC for restoration is appropriate as directed by the Division Bench.

Reva Khetrapal, J.

1. The Appellant in this appeal seeks to challenge the order dated 4.7.2012 passed by a learned Single Judge of this Court in Execution Petition whereby the learned Single Judge allowed the application being E.A. No. 356/2006 of the Respondent/Decree Holder under Order XXII Rule 10 of the Code of Civil Procedure to bring on record Invensys Deutschland GmbH in place of the original Decree Holder Deutsche Ranco GmbH, and also allowed the application for restoration of the Execution Petition which was dismissed in default on 7.8.2007, being E.A. No.36/2008.

2. Shorn of details, the facts relevant for the decision of the present Appeal are that the Respondent/Decree Holder filed Execution Petition No.58/1994 which was dismissed in default vide order dated 13.1.1999 and subsequently restored vide order dated 16.10.2003 passed by the learned Single Judge on the Respondent/Decree Holder filing an application under Order IX Rule 3, being E.A. No.96/1999. Subsequently the Execution Petition was again dismissed in default on 7.8.2007 and E.A. No.36/2008 was filed for its restoration, which was allowed vide order dated 25.1.2008. The Appellant/Judgment Debtor preferred a Review Petition, being E.A.(OS) No.187/2009. This Review Petition was allowed by the learned Single Judge vide order dated 28.7.2009 relying upon the judgment of the Supreme Court in the case of Damodaran Pillai vs. South Indian Bank Ltd., (2005) 7 SCC 300. It may be noted at this juncture that in the said case of Damodaran Pillai (supra) the Supreme Court held that an execution application when the same is dismissed in default cannot be restored after a period of 30 days and which period also cannot be extended inasmuch as Section 5 of the Limitation Act, 1963 does not apply to execution proceedings.

3. Aggrieved by the said order of the learned Single Judge recalling the order dated 25th January, 2008 whereby the Execution Petition had been restored, the Respondent/Decree Holder filed an Appeal, being EFA(OS) No.32/2009. This appeal was allowed by the Division Bench vide order dated 30.11.2010. In effect, the Division Bench in Appeal remanded the matter to the learned Single Judge calling upon him to consider whether sufficient reason had been made out for the invocation of Section 151 of the CPC for the purpose of granting or denying the relief prayed for, i.e., restoration of the petition; but before doing so to dispose of the application for substitution of the Decree Holder under Order XXII Rule 10 (which now forms subject matter of E.A. No.356/2006).

4. It is deemed appropriate to reproduce the relevant extract of the order of the Division Bench, which reads as under:-

“10. For these manifold reasons, we are of the opinion that the impugned order deserves to be set aside inasmuch as the learned Single Judge has first proceeded under Order IX Rule 4 of the CPC and thereafter under Order XXI Rule 106 of the CPC. We remand the Execution to the Board of the learned Single Judge requesting him to consider whether sufficient reason has been made out firstly for the invocation of Section 151 of the CPC and secondly for granting or denying relief thereunder. Keeping the uniqueness and singularity of the circumstances in perspective, it seems to us that the learned Single Judge should first dispose off the application for substitution of the Decree Holder, namely, Deutsche Ramco GmbH by the transferee, namely, Invensys Deutschcland GmbH. Depending on the conclusions arrived at, the learned Single Judge would thereafter, or even simultaneously, consider the conundrum of whether Execution Proceedings deserve to be restored. The Remand is necessary and proper since it would be inappropriate for the Appellate Court to return a finding as to whether the relief could have been granted or denied under Section 151 of the CPC, an exercise which has not been undertaken by the learned Single Judge.”

5. Upon remand, both the applications, being E.A. Nos.35