S.P. Jaiswal vs C.M. Sharma
1991 Latest Caselaw 103 Del

JUDGMENT

P.N. Nag

(1) This revision petition is directed against the order of the learned Sub Judge 1st Class dated 20th March, 1987 whereby an application for restoration of the execution petition has been dismissed on the short ground that there is no provision for restoration of execution petition under the Code of Civil Procedure, 1908 and only a new execution petition is maintainable.

(2) It appears that the execution petition of the decree holder was dismissed on 15th February, 1985 in default as no appearance was put in on behalf of the decree holder on that date. The decree holder filed an application under Order 9 Rule 9 for restoration of the execution petition which was supported by an affidavit of counsel giving reasons therein for non-appearance of the decree holder on the last date, i.e. 15.2.1985 when the case was dismissed in default.

(3) Learned counsel for the decree holder/petitioner states that there are inherent powers of the Court to restore the execution petition, which was dismissed in default, under Section 151 of the Code of Civil Procedure, 1908 and that the trial Court was in error in not having exercised the jurisdiction by considering the application on merits.

(4) There seems to be a good deal of 'force in the submission of the learned counsel for the petitioner. In my opinion, the trial Court was fully within its inherent power to restore the execution petition of the decree holder under section 151 of the Code of Civil Procedure, 1908. There is apparent an error in the exercise of jurisdiction by the trial Court by having refused to consider the application of restoration of execution petition on merits under Section 151 of the Code of Civil Procedure, 1908. I am fully supported by view expressed by Rajasthan High Court in Khem Chand and others v. Niranjanlal and others wherein their Lordships have held that a dismissal of an execution application for default of appearance of the decree holder, when not covered by 0. 21, R. 57, is. a dismissal for default under section 151 and in such a case the Court can, in exercise of its inherent power under that section restore the application.

(5) Therefore, the revision petition is accepted, the impugned order of the trial Court is set aside and the matter is remanded to the trial Court for considering the application for restoration of execution petition on merits. No costs. Petition allowed.