Allahabad High Court
Sukhvir Singh vs Mamraj And 26 Others on 24 August, 2023
Bench: Jayant Banerji
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2023:AHC:170823
Court No. - 1
Case :- MATTERS UNDER ARTICLE 227 No. - 7527 of 2023
Petitioner :- Sukhvir Singh
Respondent :- Mamraj And 26 Others
Counsel for Petitioner :- Avinash Pandey
Hon'ble Jayant Banerji,J.
1. Heard learned counsel for the petitioner.
2. This petition has been filed seeking the following relief:
"i. to set aside the impugned judgment and order dated 13.4.2023 passed by District Judge, Saharanpur in Civil revision No. 140 of 2022 ( Mamraj and others Vs. Sukhvir Singh and others) annexure no.1 of the petition."
3. The petitioner is plaintiff-decree holder, whose predecessor had filed Original Suit No. 202 of 1981. It is stated that Execution Case No. 9 of 2007 was filed by the decree holder which was dismissed for non- prosecution on 27.8.2010. It is stated that thereafter, another execution case was filed by the petitioner bearing Execution Case No. 8 of 2011 which was dismissed by the order of executing court on 2.1.2014. It is stated that the petitioner filed a revision against the order dated 2.1.2014 which also came to be dismissed.
4. Thereafter, an application (Paper No. 4C-2) was filed by the petitioner for restoring the Execution Case No. 9 of 2007 that was dismissed for non prosecution on 27.8.2010. This application 4C-2 was filed on 21.1.2015. By an order dated 14.11.2022, the trial court allowed the application. Thereafter, the defendants-respondents filed a revision being Civil Revision No. 140 of 2022 which came to be allowed by means of the impugned order dated 13.4.2023.
5. The contention is that earlier the Execution Case No. 9 of 2007 was not pursued in view of the advice of the learned counsel. It is contended that a decree exists in favour of the petitioner and he would put to enormous loss if he is not allowed to get the decree executed.
6. A perusal of the order of the revisional court reveals that it has been observed therein that the order dated 2.1.2014 passed by the trial court while rejecting the Execution Case No. 8 of 2011 has become final and the order passed in Execution Case No. 9 of 2007 has also merged in the order passed in Execution Case No. 8 of 2011 and, therefore revision was allowed and the order of the trial court dated 14.11.2022 was set aside.
7. Rules 105 and 106 of Order 21 of the Code of Civil Procedure are required to be taken into account for purpose of this case. They read as follows:
"Rule 105: Hearing of application :--(1) The Court, before which an application under any of the foregoing rules of this Order is pending, may fix a day for the hearing of the application.
(2) Where on the day fixed or on any other day to which the hearing may be adjourned the applicant does not appear when the case is called on for hearing, the Court may make an order that the application be dismissed,
(3) Where the applicant appears and the opposite party to whom the notice has been issued by the Court does not appear, the Court may hear the application ex parte and pass such order as it thinks fit.
Rule 106: Setting aside orders ex parte, etc. :--(1) The applicant, against whom an order is made under Sub-rule (2) of Rule 105 or the opposite party against whom an order is passed ex-parte under Sub-rule (3) of that rule or under Sub-rule (1) of Rule 23, may apply to the Court to set aside the order, and if he satisfies the Court that there was sufficient cause for his non-appearance when the application was called on for hearing, the Court shall set aside the order on such terms as to costs or otherwise as it thinks fit, and shall appoint a day for the further hearing of the application.
(2) No order shall be made on an application under Sub-rule (1) unless notice of the application has been served on the other party.
(3) An application under Sub-rule (1) shall be made within thirty days from the date of the order, or where, in the case of an ex parte order, the notice was not duly served, within thirty days from the date when the applicant had knowledge of the order."
8. The limitation that has been prescribed in moving an application for setting aside an exparte order is under sub-rule (3) of Rule 106 of Order 21. Such being the case, the provisions of Limitation Act would not be applicable. Admittedly, the application filed for restoration of the Execution Case No. 9 of 2007 was filed in the year 2015 and the execution case itself was dismissed for non-prosecution on 27.8.2010. It is after nearly five years that application was filed and therefore, regardless of the order that has been passed in Civil Revision No. 140 of 2022 on 13.4.2023, the petitioner has not been able to overcome the bar of limitation that has been prescribed under sub-rule (3) of Rule 106 of Order 21 CPC.
9. Under the circumstances, no cause for interference is called for in this petition and it is, accordingly, dismissed.
Order Date :- 24.8.2023
sfa/
(Jayant Banerji, J)
