1. Petition by decree holder challenging dismissal of restoration application of execution application for decree of specific performance. (Para 1 , 2 , 4 )
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2025 Supreme(Online)(Bom) 248639
HIGH COURT OF BOMBAY
HON'BLE MS. JUSTICE GAURI GODSE
RAHUL TATYABA JAMDAR THR POA TATYABA KRISHNA JAMDAR – Appellant
Versus
NARAYAN VISHNU NALAWADE – Respondent
WP/10593/2023
Advocates:
For the Appellants/Petitioners: Manoj Patil, Shubham Dhenge
For the Respondents: Rahul Soman, Suyash More
For the Appellants/Petitioners: Manoj Patil, Shubham Dhenge
For the Respondents: Rahul Soman, Suyash More
An order rejecting the restoration of an execution application dismissed under the court's inherent powers (Section 151 CPC), as opposed to Order XXI Rule 105, is not appealable under Order XLIII Rule 1(ja) of the CPC.
Headnote:(A) Code of Civil Procedure, 1908 - Order XXI Rules 105 and 106 - Order XLIII Rule 1(ja) - Section 151 - Execution application dismissed for default in taking steps - Maintainability of writ petition - If an execution application is not fixed for hearing as contemplated under Order XXI Rule 105 and is dismissed for default of taking steps, such dismissal is an exercise of inherent powers under Section 151 - Consequently, an application for its restoration is also governed by Section 151 and the order rejecting such restoration is not appealable under Order XLIII Rule 1(ja) of the CPC. (Paras 10, 11 and 12)
(B) Restoration of Execution Application - Inherent powers - Where roznama entries indicate that no specific steps were required to be taken by the decree holder at the time of dismissal, the dismissal of the execution application for default in taking steps is unjustified and the application for restoration should be allowed to ensure substantial justice. (Paras 8 and 11)
Facts of the case:
A decree holder filed an execution application for specific performance of a contract. The executing court dismissed the application for default in taking steps. The decree holder filed an application for restoration, citing the illness of the power of attorney holder, which was subsequently rejected by the lower court on technical grounds regarding the dates mentioned in a medical certificate. The decree holder challenged the rejection of the restoration application via a writ petition.
Findings of Court:
The court found that the execution application was not fixed for hearing under Order XXI Rule 105; therefore, it was dismissed under the inherent powers of the court under Section 151 of the CPC. Thus, the order rejecting the restoration application was not appealable under Order XLIII Rule 1(ja), making the writ petition maintainable. On merits, the court observed that the roznama showed the matter was awaiting mediation reports and no specific steps were pending from the decree holder's side on the date of dismissal.
Issues: Whether the order rejecting the restoration of an execution application dismissed under Section 151 of the CPC is appealable under Order XLIII Rule 1(ja), and whether the dismissal for default of steps was justified given the state of the proceedings.
Ratio Decidendi: An order rejecting a restoration application for an execution proceeding dismissed under the inherent powers of the court (Section 151) rather than under Order XXI Rule 105 is not appealable under Order XLIII Rule 1(ja). Furthermore, a dismissal for default in taking steps is unsustainable if the record indicates no such steps were required from the party at that stage.
Result: Petition allowed.
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Table of Contents
2. Petitioner argued order under Section 151 CPC not appealable; Respondent argued order appealable under Order XLIII Rule 1(ja) CPC. (Para 3 , 5 )
3. Execution application was not dismissed under Order XXI Rule 105; restoration was under inherent powers; therefore, order not appealable under Order XLIII Rule 1(ja). (Para 10 , 11 )
4. Order rejecting restoration of execution application dismissed under inherent powers under Section 151 CPC is not appealable under Order XLIII Rule 1(ja). (Para 11 )
5. Petition allowed; impugned order quashed; restoration application allowed; execution application restored to file. (Para 13 )
6. Is an order rejecting a restoration application for an execution appealable under Order XLIII Rule 1(ja) CPC?
Only if the execution application was dismissed under Order XXI Rule 105 and the restoration application was under Rule 106. Otherwise, the order is not appealable. (Para 5 , 9 , 10 , 11 )
7. What is the distinction between dismissal of execution application under Order XXI Rule 105 and dismissal under inherent powers under Section 151 CPC?
Dismissal under Rule 105 occurs when an application is fixed for hearing and dismissed in default. Dismissal under Section 151 occurs when no hearing under Rule 105 was fixed. (Para 9 , 10 , 11 )
8. Can an executing court restore an execution application dismissed for default under its inherent powers under Section 151 CPC?
Yes, the court can exercise inherent powers under Section 151 CPC to restore an execution application dismissed for default when it was not dismissed under Order XXI Rule 105. (Para 8 , 9 , 10 , 11 )
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 30th 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 Ghate 1, 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 1st 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 8th January 2007, for specific performance of the contract in favour of the petitioner. On 1st 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 9th October 2014 for restoration of the execution application. This application is dismissed on 25th 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 1st 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 appeal
