The central legal point established in the judgment is the importance of adhering to the limitation period for making an application to set aside an order under Order 21, Rule 106 of the CPC.

JUDGMENT

B.N. Mahapatra, J.-- This writ appeal has been filed for setting aside the orders passed under Annexures-1, 2 and 3. Annexure-1 is the order dated 16.12.2009 passed by the learned Civil Judge (Sr. Division), Balasore allowing CMA No. 46 of 2005 in part on contest subject to payment of cost of Rs.2000/-to the opposite party within a stipulated date, i.e., by 27.12.2009. Annexure-2 is the revisional order dated 22.2.2010 passed by the learned District Judge, Balasore-Bhadrak, Balasore in Civil Revision No. 1 of 2010 holding that the revision petition is not maintainable. Annexure-3 is the order dated 19.3.2010 passed by the learned Single Judge in W.P.(c) No.4524 of 2010 dismissing the writ petition on the ground that the trial court has done substantial justice in the matter by restoring the Execution Case subject to payment of cost of Rs.2000/-to the defendant in order to mitigate the prejudice caused to him.

2. The facts and circumstances giving rise to the present writ appeal are as follows:

The writ appellant is the judgment-debtor in Execution Case No.1 of 1988 pending in the court of learned Civil Judge (Senior Division), Balasore. The plaintiff-respondent filed suit being O.S. No.111 of 1976 for specific performance and the same was decreed with a specific direction to the appellant to execute the sale deed. Pursuant to the said decree, the plaintiff-respondent instituted Execution Case No.1 of 1988 before the learned Civil Judge (Sr. Division), Balasore. On 04.08.2000 advocate for the DHR filed a petition praying to give possession. The said execution case was dropped on 24.8.2004 as no step was taken by either parties since long and none appeared on repeated calls on that day. The CMA bearing No. 46 of 2005 was filed on 20.1.2005 by Decree-holder for restoration of the execution case by invoking jurisdiction under Section 151, CPC and ultimately the same was allowed by the learned Civil Judge (Sr. Division) subject to payment of cost of Rs.2,000/-vide order dated 16.12.2009 (Annexure-1). Being aggrieved by the said order under Annexure-1, the appellant had filed Civil Revision No.1 of 2010 which was dismissed vide order dated 22.2.2010 (Annexure-2) on the ground that the said revision petition was not maintainable.

3. The writ appellant filed W.P.(c) No. 4524 of 2010 challenging the revisional order dated 22.2.2010 with a prayer to set aside the said order and for issuance of a direction to hear the revision petition on merit, which was dismissed on the ground as stated above.

4. Mr. R.C. Sarangi, learned counsel appearing for the writ appellant submitted that a cryptic, non-speaking and unreasoned order has been passed by the learned Single Judge without considering the totality of the facts and circumstances of the case. The learned Single Judge has failed to appreciate that Section 151, CPC cannot be invoked in favour of a person who is guilty of delay and laches. The learned Single Judge should not have granted relief indirectly which cannot be granted directly. The effect of the order passed under Annexure-1 is a nullity having been passed without jurisdiction. The Executing Court cannot act contrary to law. Therefore, even though the power under Article 226 of the Constitution is discretionary, the learned Single Judge should have declined to exercise her discretionary power in favour of the plaintiff-respondent. Restoration of an execution case is governed under Order 21, Rule 106, CPC which provides for a special period of limitation of one month to make application for restoration of the execution case. Section 5 of the Limitation Act is not applicable to the execution proceedings. Therefore, even when a restoration application is filed in the garb of an application under Section 151, CPC, the special period of limitation fixed expressly by the statute cannot be bypassed. In support of his above contention Mr. Sarangi relied upon a decision of Hon’ble Supreme Court in the case of Damodaran Pillai & oth