JUDGMENT :

Mir Alfaz Ali, J.

Heard Mr. K.A Mazumdar, learned counsel for the petitioner and Mr. G.N. Sahewalla, learned senior counsel for the respondent.

2. The challenge in this revision petition is to the order dated 18.12.2018 passed by the learned Civil Judge, Hailakandi, whereby, the execution proceeding, which was dismissed for default was restored.

3. The facts leading to the present revision petition are that the respondent as plaintiff filed the Money Suit No.18/2014, which was decreed and the execution proceeding was initiated, which was registered as Money Execution case No.09/2016. The decree holder/ respondent failed to appear on various dates and therefore, the execution proceeding was dismissed for default by order dated 15.03.2018. Thereafter, the decree holder/respondent filed an application under Order IX Rule 9 CPC, praying for setting aside the order of dismissal and to restore execution proceeding, which was allowed by the learned Civil Judge by the impugned order.

4. Learned counsel for the petitioner referring to Sub-rule (3) of Rule 106 of Order 21 of the CPC contends, that the petition filed by the decree holder/respondent for setting-aside the order of dismissal of the execution proceeding was barred by time, however, the learned Civil Judge allowed the petition without considering the provision of law laid down in sub-rule (3) of Rule 106 and thereby committed illegality.

5. Learned senior counsel Mr. GN Sahewalla submits that the revision petitioner/judgment debtor filed an appeal against the decree along with an application for condonation of delay and the respondent/decree holder was also pursuing the said petition filed along with the appeal and therefore, the respondent was under the impression, that since appeal has been filed, execution case may not proceed. After rejection of the petition for condonation of delay, the decree holder/respondent came to know abut the dismissal of the execution proceeding. Apparently, the execution proceeding was dismissed for default by order dated 15.03.2018 and a petition under Order IX Rule 9 CPC for setting aside the dismissal and restoration of the execution proceeding was filed on 11.06.2018.

6. Order XXI Rule 105 & 106 CPC reads as under:

105. Hearing of application. (1) The court, before which an application under any of the foregoing rules of this Order is pending, may fix a day for the hearing of the application.

(2) 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 is dismissed.

(3) Where the applicant appears and the opposite party to whom the notice has been issued by the Court does not appear, the Court may hear the application ex-parte and pass such order as it thinks fit.

106. Setting aside orders passed ex parte, etc. - (1) The applicant, against whom an order is made under sub-rule (2) of rule 105 or the opposite party against whom an order is passed ex parte under sub-rule (3) of that rule or under sub-rule (1) of rule 23, may apply to the Court to set aside the order, and if he satisfied the Court that there was sufficient cause for his non-appearance when the application was called on for hearing, the Court shall set aside the order or such terms as to costs, or otherwise as it thinks fit, and shall appoint a day for the further hearing of the application.

(2) No order shall be made on an application under sub-rule (1) unless notice of the application has been served on the other party.

(3) An applicant under sub-rule (1) shall be made within thirty days from the date of the order, or where, in the case of an ex parte order, the notice was not duly served, within thirty days from the date when applicant had knowledge of the order.

7. A plain reading of the above provision of sub-rule (3) makes it amply clear, that an application under rule 106(1) for setting aside the order of dismissal passed in an executi