ORDER :

Jahangir Jamshed Munir, J.

1. This petition under Article 227 of the Constitution has been brought by a decree holder to set aside an order passed by the IVth Additional District and Sessions Judge/Special Judge (E.C. Act), Bulandshahar dated 16.04.2010, in Execution Case No. 20 of 2004, dismissing the petitioner's Execution Application in his absence, though expressly not saying that the dismissal is in default. Further challenge is laid to an order dated 23.01.2019, passed by the Court aforesaid, rejecting an application under Section 5 of the Limitation Act, filed in aid of an application under Order IX Rule 4 read with Order XXI Rule 106 and Section 151 C.P.C. seeking to set aside the order dated 16.04.2010, dismissing the Execution Application in default of the decree holder.

2. Heard Sri Uma Kant Mishra, learned counsel for the petitioner and Sri Sunil Kumar Mishra, learned counsel appearing on behalf of respondent Nos. 2 and 3.

3. The question that falls for consideration in this petition is: whether an Execution Application dismissed in default on a day when it is not set down for hearing but for orders or some other proceeding, can be restored with aid of Section 5 of the Limitation Act, through an application made for the purpose, beyond the non condonable limitation of 30 days prescribed under Order XXI Rule 106(3) Code of Civil Procedure?

4. The issue has come up in the context of proceedings arising from two references made to the District Judge of Bulandshahar under Section 18 of the Land Acquisition Act, 1894 (for short, 'the Act'). The references aforesaid were a sequel to acquisition of certain land of the petitioner comprising Khasra No. 875/1 of Khata No. 206, admeasuring 2 Bigha and Khasra Nos. 874/2 and 875/3 both part of Khata No. 206, admeasuring a total of 7 Bigha 10 Biswa, located in the erstwhile village of Kasna, Pargana Dankaur, District Bulandshahar, and now falling in the district of Gautam Buddh Nagar. The aforesaid land is hereinafter referred to as the 'land in dispute'. The land in dispute was acquired by the State through a Notification under Section 4(1) of the Act, dated 03.03.1989, followed by a declaration under Section 6(1), dated 31.03.1989. Possession of this land appears to have been taken by the State on 03.07.1990 and an Award of compensation was made by the Special Land Acquisition Officer, Bulandshahar on 26.11.1990. The Special Land Acquisition Officer awarded compensation at four different rates per Bhigha of acquired land, according to four different classes of land, that comprised the land in dispute.

5. Aggrieved by the Award of the Special Land Acquisition Officer, the petitioner moved him to make a reference to the District Judge under Section 18 of the Act. Two separate references were made by the Special Land Acquisition Officer, one relating to Khasra No. 1875/1 and the other relating to Khasra No. 874/2 and 875/3; the first of the two references was numbered on the file of the learned District Judge as LAR No. 103/1992, and the second as LAR No. 511/1992. Both references were transferred and assigned to the Additional District Judge, Court No. 2, Bulandshahar before whom these came up for determination on 17.12.2003.

6. Both references were heard together and decided by a common judgment and award of the date last mentioned, whereby both references were accepted. The references were accepted in terms that determining the land in dispute to be industrial in nature on the date of acquisition, compensation that was awarded by the Special Land Acquisition Officer @ of quantification per Bigha, the learned Judge determined it @ Rs. 65 per square yard. It was also awarded that the compensation payable shall carry interest from the date of Notification under Section 4(1) to the date of transfer of possession @ 12% per annum. It was also ordered that on the enhanced compensation worked out in terms of the award of the Reference Court, statutory entitlement of solatium @ 30% wo