The main legal point established in the judgment is the strict adherence to the timeline for filing restoration applications under Order 21 Rule 106 of C.P.C.

JUDGMENT :

Biswanath Rath, J.

1. This Civil Miscellaneous Petition has been filed seeking a direction for setting aside of the order dated 4.07.2016 passed by the District Judge, Kandhamal in E.P. Case No.2 of 2012 and further seeking a direction from this Court to allow the petitioner to file the show cause in the Execution Proceeding, which may be considered by the learned District Judge, Kandhamal.

2. Short background involved in the case is that the petitioner is the functionary of the State and the opposite party being the decree holder filed Execution Case No.1 of 2012 claiming recovery of amounts involved therein. Referring to the order sheet involving Execution Case No.1 of 2012 i.e. on 13.1.2013 the judgment debtor stated that the Decree Holder has not taken any effective steps to remove the defects from the office note in the execution case and on admission of the execution case on 22.02.2013 & 13.07.2013 the decree holder filed a petition praying therein to delete the name of the judgment debtor on the ground stated therein. As a consequence, name of one of the judgment debtor got deleted by order dated 23.07.2013. On which date the judgment debtor 2 was set ex parte for its remaining absent in Court in spite of due notice. It is alleged that the decree holder had not taken any steps to file correct requisites against the judgment debtor. It is only when the decree holder filed a petition under Section 128 (2) (d) of C.P.C. requesting for passing of an order for attachment of item stated in the petition, the Judgment Debtor came to know regarding pendency of such case. This petition was filed by the decree holder on a memo for not pressing the same and the same was rejected. On 9.11.2015 the Government pleader on behalf of the judgment debtor filed a memo of appearance and also filed a petition under order 21 Rule 106 of C.P.C praying to set aside the ex parte order dated 23.07.2013. The judgment debtor filed a petition for withdrawal under Order 21 Rule 106 read with Section 151 of C.P.C through Government pleader and on the same date the Government pleader filed another application under Order 9 Rule 13 read with Section 151 of C.P.C praying to set aside the order dated 23.07.2013. After few days the Government pleader also filed another petition under Section 5 of the Indian Limitation Act. While the matter stood thus, on 21.4.2016 the Government pleader filed another petition under Order 21 Rule 58 of the C.P.C. The District Judge took up the application under Order 9 Rule 13 read with Section 151 of C.P.C alongwith the application under Section 5 of the Limitation Act and dismissed the petition by his order dated 4.07.2016 giving rise the present Civil Miscellaneous Petition.

By filing the application for restoration the JDR submitted that though the notice has reached their office through the staffs at lower level but as the notice copies were misplaced and has not been brought to the notice of the Officer concerned, he could know regarding pendency of the proceeding only after getting the notice of attachment involving the execution.

3. Assailing the impugned order under Annexure-6, Sri Somanath Mishra, the learned Additional Government Advocate contended that for there being no provision in a execution proceeding to set a party ex parte, the order dated 23.07.2013 becomes bad. Further, since the order was passed without following any provision of law, there was no scope for rejecting the application for recalling the ex parte order at the instance of the judgment debtor. Learned Additional Government Advocate further taking the stand that the decreetal dues as per the award involving the arbitration proceeding since being paid, contended that the decree involving the arbitral award was fully satisfied and for involvement of such a grievous issue, in the interest of justice, the executing Court should have given an opportunity of objection as well as hearing to the judgment debtor by allowing the application at th