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High Court Of Madhya Pradesh
P. C. PATHAK
KHOOBCHAND JAIN - Appellant
Versus
KASHI PRASAD - Respondents
CIV. REVN. 1577 Of 1982
Decided On : 11/13/1984
Prior to 1976, there was no provision in the Code setting out the conditions under which an execution application could be dismissed or restored. The Court exercised inherent powers to meet such eventualities. By Code of Civil Procedure (Amendment) Act, 1976 (104 of 1976), rules 104 to 106 were inserted, making specific provision for dismissal or ex-parte hearing of the application and also for setting aside such orders. [Para 10
Rule 105 (2) of Order 21 contemplates dismissal but only when the applicant does not appear when the case is called for hearing. [Para 11
(2) Civil P. C., 1908-O.9. R. 2 & O. 21, R. 105 (2) dismissal of a suit-may be made where the plaintiff fails to pay Court-fees or postal charges necessary for issuance of summons or fails to present copies of the plaint-the scope of O. 21, R. 105 (2) is limited only to a case where the decree-holder does not appear. [Para 10 & 11
(3) Civil P. C., 1908-O. 9, R. 2-hearing-meaning of
(4) Practice-'hearing'-meaning of
'Hearing' refers to hearing of the case by the Court and does not include the disposal of routine matters which is within the power of the Court. A date fixed solely as the last date on which a list of witnesses may be filed is not a date fixed for 'hearing'.
When a suit is merely fixed for considering an interlocutory matter, it cannot be said that the suit is fixed for hearing. 1983 JLJ 535 & AIR 1938 Rangoon 360 relied on. [Para 11 & 12
(5) Civil P. C., 1908-O. 21, Rr. 11 & 12-execution of decree by attachment of moveable property-steps to be taken by the decree-holder.
The decree-holders had already applied for execution and paid process-fee for issuance of a warrant of attachment. It was, therefore, for the Court to issue a warrant of attachment of such property as was in possession of the judgment-debtors. Submission of the inventory of moveable property in possession of the judgment-debtors is not necessary under the relevant rules. In case, the warrant is returned unexecuted, the decree-holders could, in their discretion, make an application for examination of the judgment-debtors under rule 41 or could resort to any other mode to recover the decretal amount. AIR 1941 Nag. 152 and 1960 JLJ 273 relied on. [Para 15
(6) Civil P. C., 1908-O. 21, Rr. 105 & 106-dismissal of execution of decree-can he made under inherent powers-can he restored under inherent powers-no limitation is prescribed by such application for restoration under inherent powers.
The date on which the execution application was dismissed for default of the decree holders was not a date fixed for 'hearing' within the meaning of rule 105. Hence rule 105 (2) is not attracted. Such dismissal is referable to inherent powers of the Court. [Para 18
Where the dismissal of the execution is under inherent powers of the Court, the application for its restoration will be by invoking the inherent powers of the Court and in that event, no time limit is prescribed for invoking the inherent powers of the Court. [Para 20
Key Points: - Execution application may be dismissed only when the applicant does not appear on the hearing date (!) (!) . - Dismissal under Rule 105 applies only when the applicant fails to appear at the hearing, not for other defaults such as non-payment of costs (!) (!) . - The meaning of "hearing" refers to the court hearing the case, not routine disposal or mere listing of witnesses (!) (!) . - If dismissal is not under Rule 105, it falls under the court’s inherent powers and restoration is also through inherent powers with no time limit (!) (!) (!) . - Where dismissal is under inherent powers, restoration is allowed upon satisfying the court, such as by paying costs (!) (!) .
( 1 ) THIS revision is filed by the decree-holders against the order dated 19-8-1982, passed by the Addl. Judge to the Court of District Judge, Chhatarpur, in Misc. Civil Appeal No. 8 of 1981, arising out of Misc. Judicial Case No. 32 of 1980 of the Court of Civil Judge, Class I, Chhatarpur, dated 7-5-1981.
( 2 ) IN Civil Suit No. 34-B of 1965, the decree-holders obtained a decree against the judgment-debtors/non-applicants Nos. 1 to 3 on 15-12-1966 for a sum of Rs. 5,180/- as principal, Rs. 685/- as interest and future interest @rupee 0. 25% per month on the principal amount till the date of realisation. The suit against the non-applicant No. 4 was dismissed.
( 3 ) THE decree-holders filed an application for execution of the said decree on 30-6-1977. After the judgment-debtors had entered appearance, the Executing Court ordered to issue a warrant of attachment of moveables, on furnishing a list of moveable property and payment of process-fee within three days of the order. The decree-holders complied with the direction on 22-1-1978 and the Executing Court issued a warrant to attach the moveables as per the list. Before the attachment could be effected, non-applicant No. 4 Virendra Kumar submitted an objection on 29-1-1979 that the suit against him having been dismissed his property could not be attached. The Executing Court, by its order dated 29-1-1979, upheld the objection and directed the decree-holders to furnish a fresh list of moveables and to issue a warrant of attachment of such moveables thereafter. The order-sheets dated 21-3-1979, 10-5-1979, 30-6-1979 and 21-7-1979 show that the decree-holders failed to submit anylist of moveables for attachment. Therefore, no warrant of attachment could be issued. On the last date, the Executing Court granted further time to the decree-holders to furnish a list of property within 3 days and on such a list being furnished, warrant of attachment was to be issued. The case was adjourned to 21-8-1979 awaiting the execution of the warrant.
( 4 ) ON 21-8-1979, neither the decree-holders nor their counsel appeared in the Court when the case was called out. The execution application was, therefore, dismissed on 21-8-1979 in default of appearance of the decree-holders.
( 5 ) ON 24-9-1979, the decree-holders submitted an application under Order XXI, Rule 106, Code of Civil Procedure, for restoration of the execution case on the ground that they could not attend the Court due to their illness on 21-8-1979. Explaining the delay in making the application, the decree-holders pointed out that on 21-9-1979 to 23-9-1979 the Court was closed. The application was supported by an affidavit.
( 6 ) THE judgment-debtors/non-applicants Nos. 1 to 3 opposed the application. They submitted that there was no medical certificate to substantiate the illness. They also raised an objection that the application was barred by limitation. 6a. On 6-1-1980, the decree-holders submitted another application under Section 5 of the Limitation Act for condoning delay in making the restoration application. The judgment-debtors, by their reply dated 1-4-1980, opposed this application also on various grounds.
( 7 ) THE parties led their evidence. On behalf of the decree-holders/applicants, Dr. Ansari and Motilal were examined; whereas on behalf of the judgment-debtors, non-applicant Kashi Prasad alone entered the witness-box.
( 8 ) THE Executing Court, by its impugned order, held that Section 5 of the Limitation Act does not apply to the applications under Order XXI of the Code of Civil Procedure. The Court, after examining the merits, held that the decree-holders failed to establish that they were prevented by sufficient cause for their non-appearance on 21-8-1979. The application was accordingly dismissed.
( 9 ) THE decree-holders preferred a miscellaneous appeal which too was dismissed affirming the view of the Executing Court, Now, the decree-holders have filed this revision challenging the impugned order
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