2025D:iBgitaHllyC-AS:36638

signed by

VARSHA VARSHA VIJAY

VIJAY RAJGURU

Date:

RAJGURU 2025.08.26

14:46:51

+0530

3-wp-10593-2023.doc

varsha IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 10593 OF 2023

Rahul Tatyaba Jamdar

R/o-Nawadi, Tal: Patan, District: Satara.

Through his Power of Attorney Holder

Tatyaba Krishna Jamdar

… Petitioner

r/o. Nawadi, Taluka Patan, District: Satara

vs.

Narayan Vishnu Nalawade

R/o. Nawadi, Tal: Patan, District Satara. … Respondent

Mr. Manoj Patil a/w. Mr. Shubham Dhenge for Petitioner

Mr. Rahul Soman a/w. Mr. Suyash More for the Respondent.

CORAM : GAURI GODSE, J.

DATED : 6th AUGUST 2025

JUDGMENT:

1. This petition is filed by the decree holder to challenge the dismissal of his application for restoration of the execution

application.

2. By order dated 30^th August 2023, notice for final disposal of the petition was issued. When the petition was taken up for final disposal, learned counsel for the respondent raised a preliminary objection that the petition would not be

maintainable as the impugned order is appealable under clause (ja) of Rule 1 of Order XLIII of the Civil Procedure Code, 1908 (‘CPC’). Learned counsel for the respondent relied upon the decision of this court in the case of Dattatraya s/o Raghunath Jog Vs. Radhabai w/o Laxmanrao Ghate¹, to support his submissions. He submitted that the provisions of Rules 105 and 106 of Order XXI of the CPC would apply for the restoration of the execution application. He thus submits that once the execution application is dismissed and a restoration application is filed, the same would be appealable in view of clause (ja) of Rule 1 of Order XLIII of the CPC. He submits that in the decision of Dattatraya Jog, it is held that Rules 105 and 106 of Order XXI of CPC apply for restoration of execution application.

3. Learned counsel for the petitioner submits that the impugned order was not passed under an application under Rule 106 of Order XXI of CPC. He submits that the execution application was dismissed in default on 1^st September 2014. Hence, the application for restoration was filed under Section

1 2007(3) Mh.L.J 425

151 of the CPC. He submits that the learned judge refused to exercise inherent power under Section 151 of the CPC for the restoration of the execution application. He further submits that neither the execution application was dismissed under Rule 105 of Order XXI of CPC nor was the application filed under Rule 106 of Order XXI of CPC. Therefore, according to the learned counsel for the petitioner, the impugned order would not be appealable and the writ petition is therefore maintainable.

4. To examine the preliminary objection, it is necessary to refer to the basic facts of the case. The execution application is filed for execution of the judgment and decree dated 8^th January 2007, for specific performance of the contract in favour of the petitioner. On 1^st September 2014, the executing court dismissed the application by passing the following order:

“ORDER “Decree Holder and his advocate are absent. No steps are taken. No reason to proceed as it is. Hence, application is dismissed for default to take steps.

Sd/-

01/09/2014”

5. The petitioner filed an application on 9^th October 2014 for restoration of the execution application. This application is dismissed on 25^th April 2022. The application is decided by treating it as an application under Section 151 of CPC. I have perused the roznama of the execution application. The entries in the roznama do not indicate that on 1^st September 2014, the application was listed for hearing as contemplated under Rule 105 of Order XXI of the CPC. There is neither an order passed as contemplated under sub-rule (2) of Rule 105 of Order XXI of the CPC, nor an application filed and decided as contemplated under Rule 106 of Order XXI of the CPC. The executing court decided the restoration application in exercise of the inherent powers under Section 151 of CPC. Hence, the impugned order would not be appealab