Procedural laws are handmaiden and intended to achieve substantial justice.

The learned counsel for the petitioners is heard for

final disposal of the petition. The petitioners are the

legal representatives of Sri.Mannappa Dundappa Naik

who has commenced the execution proceedings in

Execution Petition No.19/2010 of Senior Civil Judge, at

Chikkodi (for short, ‘the Executing Court’). The

petitioners have impugned the executing Court’s order

dated 15.01.2021. The Executing Court by the

impugned order has rejected the petitioners’ application

for recall of the order dated 19.08.2017 and for

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restoration of the execution petition. The Executing

Court’s reasons reads as follows:

“Admittedly, the above IA is filed praying to recall

the order of dismissal of above petition for non-

prosecution dated 19/08/2017. The application

is supported by the memorandum of facts of the

counsel for DHR. The application is filed before

Court on 29/01/2018, much after the dismissal

of the above petition on 19/08/2017. There is no

provision to recall the order of dismissal, on an

application filed under Section 151 of CPC.,

especially in the absence of affidavit filed in

support of the application. Even, in the

memorandum of facts filed by the DHR, no

grounds are made out to allow the application of

the DHR. The application filed by the counsel for

DH is devoid of merits. No grounds acceptable in

the eye of law are made out to allow the

application.

2.

It is seen from records that Sri.Mannappa

Dundappa

Naik,

has

succeeded

in

the

suit

in

O.S.No.86/2005 with the suit being decreed on

19.03.2008 and he has instituted the present execution

proceedings for execution of this decree. He has filed an

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application for appointment of a Court Commissioner to

execute the sale deed to the subject property in specific

performance of the aforesaid decree and this application

is allowed. The Court Commissioner has also filed the

draft sale deed, but before necessary orders are passed

for the execution of such sale deed, Sri.Mannappa

Dundappa Naik has died, and the petitioners have filed

their application to come on record as his legal

representatives. It is not obvious from the record that

the petitioners’ applications in this regard are allowed.

3.

The petitioners have approached this Court

in Writ Petition No.105633/2018 for a direction to the

executing Court to consider the petitioners’ application

for recall of the order dated 19.08.2017, the date of the

order by which the execution of the petition was closed

for non-prosecution. This Court has disposed of the

said writ petition observing that it is open to the

petitioners to file necessary application before the

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executing Court to list the case before it. Thereafter, the

petitioners have filed the present application. The

executing Court has rejected this application by the

impugned order essentially on the ground that the

application is accompanied by a memorandum of facts.

4.

The question of restoration of the execution

petition is examined in the light of the facts setforth and

the settled law that procedural laws are handmaiden

and intended to achieve substantial justice. The present

application is filed by the petitioners stating that their

application to come on record is yet to be decided. This

Court is of the considered view that the impugned order

must yield and the petitioners must have another

opportunity to contend that they are entitled to come on

record

as

legal

representatives

of

Sri.Mannappa

Dundappa Naik, the decree holder and entitled to

continue the execution proceedings for the execution of

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the sale deed in terms of the decree in O.S.No.86/2005.

Therefore, the following:

ORDER

[a]

The petition is allowed, and the impugned

order dated 15.01.2021 in Ex.P. No.19/2010 on the file

of the Principal Senior Civil Judge Chikkodi at chikkodi

is quashed.

[b]

The

execution

petition

is

restored

for

reconsideration

along

with

petitioners’

application

under Order XXII Rule 3 and 4 of CPC. The petitioners

shall deposit a sum of Rs.10,000/- with the execu