The execution court cannot restore an application dismissed for default without adhering to statutory provisions regarding limitation, emphasizing that the starting point for limitation is the date of the dismissal order.

ORAL ORDER

1. This writ application under Article 226 of the Constitution of India by the writ applicants/judgment-debtors has been directed against the judgment and order of the Principal Civil Judge, Dhansura, Dist; Sabarkantha dated 17.03.2022 passed below Exh.1 in C.M.A. No.1 of 2019 in Execution Application No.2 of 2012, whereby the delay condonation application filed by the decree holder for restoration of the Execution Application was allowed and the Execution Application was ordered to be restored to its original status on file.

2. The relevant facts are briefly these:-The applicants- judgment debtors are the defendants and the respondents- decree holders are the plaintiffs to the main suit proceedings. Therefore, for the sake of convenience and to avoid any complexity, they shall hereinafter be referred to by their original status in the suit proceedings.

3. The plaintiffs obtained a decree against the defendants in a suit instituted by them before the Civil Judge (J.D.), Himmatngar camp at Modasa being Regular Civil Suit No.241 of 1991, whereby the defendants were directed to hand over the possession of the suit property to the plaintiffs on or before 03.06.1996, failing which, the plaintiffs were permitted to recover the outstanding amount of rent from the personal property of the defendants along with mesne profit of Rs.92/- per month till the handing over of the physical possession of the suit premises. Then, an application for execution was presented, which came to be dismissed in default on 04.04.2016 in the absence of the plaintiffs and his Advocate and in the presence of the Advocate for the defendants. The plaintiffs then put an application for restoration of execution application simultaneously seeking therein the prayer for condonation of delay as there was a delay in preferring the restoration application. After notice to the defendants, the delay was condoned and the execution application was restored vide order dated 17.03.2022, which is impugned in the present application.

4. Learned advocate Mr. N.V. Gandhi at the outset submits that the execution court had no jurisdiction to restore the execution case in the exercise of inherent powers under Section 151 C.P.C. and, therefore, all subsequent proceedings and order passed thereunder are null and void and that the execution application deserves rejection and should not be allowed to continue. Learned advocate Mr. Gandhi further submits that the Civil Procedure Code admittedly contains no express provision for the restoration of the execution cases dismissed in default. He submits that the order, dismissing the execution proceedings cannot be regarded as an ex-parte order because notice was served to the defendants, pursuant to which, one of the defendants was appeared and filed his objections. The order can only be termed as ex-parte when the other side was served with the notice, but did not appear. In the case on hand, it was an application at the end of the plaintiffs for execution of the decree passed in their favour, wherein they themselvee did not bother to remain present and, therefore, the execution application filed by them came to be dismissed for want of prosecution. Learned advocate Mr. Gandhi has drawn the attention of this Court to the order passed below Exh.1 in Execution Petition No.02 of 2012 dated 04.04.2016 at Page-28 of the application memo and submits that the said execution proceedings were adjourned from the time to time for production of the new address of the defendants at the end of the plaintiffs which was not provided by the plaintiffs till the date of the passing of the order. Further, neither the plaintiffs nor their counsel bothered to remain present and proceed with the execution proceedings, which led the executing court to dismiss the execution application for non-prosecution.

5. The second bone of contention raised by learned advocate Mr. Gandhi is that once the order dismissing the execution application has been passed due t