JUDGMENT :

1. Present petition under article 227 of Constitution of India has been preferred for setting aside the order dated 22.11.2019 passed by learned Civil Judge (Sr. Division)-II, Dhanbad in Civil Misc. Case No.110 of 2017 (CNR No.JHDH02-0000855-2017 which was filed for restoration of Execution Case No.01/2003/01/2007.

2. Heard the learned counsel for the petitioner as well as learned counsel for the respondent.

Argument on behalf of Petitioner

3. Learned counsel for the petitioner has submitted that the Money Suit No.99 of 1979 was decreed in favour of the decree holder by Additional Sub-judge-III, Dhanbad, which was also confirmed by the Hon’ble High Court of Judicature at Patna, Ranchi Bench in Appeal No.163/1986(R). The Execution Case No.01/1988 was filed for decretal amount to the tune of Rs.3,11,000/- on transfer to the Bilashpur Court along with interest @ 18 per annum from the date of cause of action on Principal sum claimed till filing of suit and the appellate Court reduced the interest payable from the date of filing of the suit till realization from 18% to 15%.

4. Learned counsel for the petitioner has further submitted that Execution Case No.01 of 2003 remains pending for realization of cost awarded by the Court. The case was fixed for admission and the Executing Court directed to issue summons to the judgment debtor for appearance and in compliance of order of the Court, steps were taken, but notice could not be served despite of all efforts by the petitioner. Thereafter, the case has been dismissed for default through impugned order. It is further submitted that the impugned order explicitly shows that due to non-presence of counsel, the case was dismissed for default.

There is no willful default or negligence in prosecuting the case on the part of petitioner.

Learned counsel for the petitioner further submitted that learned court below without applying judicial mind has dismissed the restoration application of the decree holder. Accordingly, he is penalized for his no fault leading to miscarriage of justice.

Argument on behalf of Respondent

5. Learned counsel for the respondent has submitted that the petitioner is emphasizing only on the date of dismissal of the Execution Cases, when counsel for the petitioner could not attend the court being busy in another court but prior to six years of the impugned order, no steps were taken by petitioner in compliance of the order of the court, for which no reasonable explanations has been offered. It is further submitted that learned counsel for the petitioner was also directed vide order dated 03.07.2023 of this Court to produce entire order sheet of Execution Case No.1 of 2003 which would suggest the steps taken by petitioner for securing the appearance of judgment debtor, which has also not been complied by petitioner rather it is told before the Court that he could not consult his client, that also adds negligence on part of petitioner. Learned counsel for the respondent further submitted that there is no illegality or infirmity in the impugned order calling for any interference by way of this petition, which is fit to be dismissed.

Discussion, Reasons and Order

6. Obviously, the Execution Case Nos.01/2003/01/2007 were instituted by petitioner and pending for admission and issuance of notice against the judgment debtor. The impugned order clearly indicates that the entire course of action taken by petitioner in prosecution of aforesaid execution proceedings. Relevant portion of the impugned order is quoted hereunder:-

“As stated aforesaid, it is very clear that the decree holder has been gross negligent in complying with the court’s order right from institution of the case and even after 14 years of filing the case the decree holder has been negligent in taking proper steps. Further, six year from 08.08.2011, the decree holder has not complied on the direction of the court for taking proper steps for appearance of the judgment debtor. The judgment debtor has given explanat