Allahabad High Court
Subhanshini Khanduri vs Nita Bajpai on 19 September, 2025
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2025:AHC-LKO:57911
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
CIVIL REVISION No. - 29 of 2024
Subhanshini Khanduri
.....Revisionist(s)
Versus
Nita Bajpai
.....Opposite Party(s)
Counsel for Revisionist(s)
:
Dhruv Mathur, Pranav Agarwal, Rahul Kumar
Counsel for Opposite Party(s)
:
Shobhit Singh, Ajai Kumar Singh
Court No. - 6
HON'BLE PANKAJ BHATIA, J.
1. Heard Shri Dhruv Mathur and Shri Pranav Agarwal, learned counsels appearing for the revisionist as well as Shri Shobhit Singh, learned counsel for the respondent and perused the material available on record.
2. The present revision has been filed by the revisionist challenging an order dated 08.02.2024, whereby the application for recall of an order dismissing the execution application for non-appearance of the decree holder came to be rejected.
3. The facts in brief are that, the decree holder had put a decree to execution sometimes in the year 2004, as appears from the order sheet that the matter was listed before the executing court on 04.07.2014 in which, an order was passed fixing the matter for further orders on 02.08.2014. On 02.08.2014, it was observed that nobody has appeared for the decree holder and the matter was directed to be listed for further orders on 19.08.2014. On 19.08.2014 the decree holder was not present as such, the execution was dismissed.
4. Coming to know of the said order dated 19.08.2014, an application was filed on 01.01.2015 purporting to be under Order IX Rule 9 of the CPC read with Section 151 CPC and by way of caution, a delay condonation application was also filed, the said application was numbered as Application No.5-B. The executing court dismissed the delay condonation application on 08.02.2024 by observing that in terms of prescriptions contained in Order XXI Rule 105 of CPC, the application for recall can be moved only as prescribed in Order XXI Rule 106 of CPC, to which, Section 5 of the Limitation Act is not applicable as such, the application was beyond limitation and, thus, liable to be dismissed.
5. In the light of the said, the contention of the counsel for the revisionist is that, on a plain reading of provisions of Order XXI Rule 105 of CPC, three eventualities are envisaged, the first is that, when the matter is fixed for hearing and, the decree holder does not appear, an order can be made by the executing court dismissing the application under Order XXI Rule 105(2) of CPC. Where the opposite party to whom the notice has been issued by the Court, does not appear, the same being course to be adopted by the executing court, is prescribed under Order XXI Rule 105(3) of CPC. The provisions for recall of the said order are prescribed under Order XXI Rule 106 of CPC, in respect of the orders passed under Sub-Rule 2 or Sub-Rule 3 of Order XXI Rule 105 of CPC.
6. The further contention of counsel for the revisionist is that, on 19.08.2014, the date on which the execution was dismissed, was not fixed for hearing and, thus, the Order XXI Rule 105 of CPC would not even get triggered and, thus, the bar of limitation prescribed under Order XXI Rule 106 of CPC would have no applicability. On the same analogy, he argues that the Judgment of the Supreme Court in the case of Damodaran Pillai and Ors. vs. South Indian Bank Ltd., decided on 08.09.2005 would have no applicability to the facts of the present case.
He also places reliance on the Judgment of this Court in the case of Balvindar Singh vs. IVth Additional District and Sessions Judge/Special Judge and Ors. decided on 11.09.2019, wherein a similar issue was considered and the following was recorded in paragraph no.21 and 22 of the case:-
"21. A perusal of the order dated 27.3.2010 does not spare the slightest doubt that 16.4.2010 was not a date fixed for hearing but orders or disposal of the service report, regarding steps earlier directed to be taken vide orders 31.10.2009 and 30.01.2010, and may be, also on the document that was filed, bearing paper no. 24 BC on 27.3.2010. It was certainly not a date that was fixed for hearing the application within the meaning of sub-rule (2) of Rule 105 of Order XXI C.P.C. Thus, the order dismissing the Execution Application on 16.4.2010 cannot be said to be an order passed in exercise of jurisdiction under Order XXI Rule 106 of the Code. That being so, a restoration application, or an application to set aside the order 16.4.2010 is not at all one made under Rule 106 of Order XXI, so as to attract the bar of limitation, under Sub-rule (3). It is clearly an application under Section 151 CPC to which the rule of limitation, under Sub-rule (3) of Rule 106 of Order XXI, does not apply.
22. Since, the impugned order dated 23.1.2019 proceeds entirely on the basis that the application is barred by limitation, which cannot be condoned treating it in manifest error to be an application under Order XXI Rule 106 of the Code, the impugned order aforesaid passed by the learned IVth Additional District Judge/Special Judge E.C. Act, Bulandshahar is manifestly illegal and liable to the set aside."
7. Shri Shobhit Singh, learned counsel representing the respondent, on the other hand, argues that, no error can be seen in the said order in view of the mandate of Order XXI Rule 105 and 106 of the C.P.C. and taking into consideration that there is no specific provision for dismissing the execution petitions which are not listed for hearing and, thus, the only recourse has open for the executing court to dismiss the same taking recourse of the Order XXI Rule 105 of CPC and, thus, the revision is liable to be dismissed.
8. Considering the submissions made at the bar, it is clear from perusal of the order sheet that, three dates were fixed in which, the decree holder did not appear, none of the three dates was for hearing, thus, in view of the well considered judgment of this Court in the case of Balvindar Singh vs. IVth Additional District and Sessions Judge/Special Judge and Ors., the provisions of Order XXI Rule 105(2) of CPC, could not have been invoked by the executing court and once, the same could not have been done, the recourse to Order XXI Rule 106 of CPC also was relevant. The Judgment in the case of Damodaran Pillai (supra), would not be applicable to the facts of the present case, as has been rightly interpreted in the case of Balwindar Singh. In the present case also, no date for hearing was fixed and, thus, the analogy for rejecting the application in question, cannot be sustained and is quashed.
9. The matter is remanded to the executing court, to restore the execution case in view of the Judgment of this Court passed in the case of Balwindar Singh, and to endeavour to conclude the execution proceedings within a period of six months.
10. The revision is allowed in above terms.
.
(Pankaj Bhatia,J.)
September 19, 2025
Praveen
