Jharkhand High Court
Mohan Lal Agarwall vs M/S Western Coalfield Limited on 1 August, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C). No.54 of 2020
------
Mohan Lal Agarwall .... .... .... Petitioner
Versus
M/s Western Coalfield Limited, a Government of India undertaking
Officer at Coal Estate Civil Lines Nagpur
.... .... .... Respondent
------
Coram: HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
------
For the Petitioner : Mr. Kalyan Banerjee, Advocate
For the Respondent : Mr. Sanjay Kumar Prasad, Adv.
------
Order No.10 Dated- 01.08.2023
1. Present petition under article 227 of Constitution of India has
been preferred for setting aside the order dated 22.11.2019 passed by
learned Civil Judge (Sr. Division)-II, Dhanbad in Civil Misc. Case
No.110 of 2017 (CNR No.JHDH02-0000855-2017 which was filed for
restoration of Execution Case No.01/2003/01/2007.
2. Heard the learned counsel for the petitioner as well as learned
counsel for the respondent.
Argument on behalf of Petitioner
3. Learned counsel for the petitioner has submitted that the Money
Suit No.99 of 1979 was decreed in favour of the decree holder by
Additional Sub-judge-III, Dhanbad, which was also confirmed by the
Hon'ble High Court of Judicature at Patna, Ranchi Bench in Appeal
No.163/1986(R). The Execution Case No.01/1988 was filed for decretal
amount to the tune of Rs.3,11,000/- on transfer to the Bilashpur Court
along with interest @ 18 per annum from the date of cause of action on
Principal sum claimed till filing of suit and the appellate Court reduced
the interest payable from the date of filing of the suit till realization
from 18% to 15%.
4. Learned counsel for the petitioner has further submitted that
Execution Case No.01 of 2003 remains pending for realization of cost
awarded by the Court. The case was fixed for admission and the
Executing Court directed to issue summons to the judgment debtor for
appearance and in compliance of order of the Court, steps were taken,
but notice could not be served despite of all efforts by the petitioner.
Thereafter, the case has been dismissed for default through impugned
order. It is further submitted that the impugned order explicitly shows
that due to non-presence of counsel, the case was dismissed for default.
There is no willful default or negligence in prosecuting the case on the
part of petitioner.
Learned counsel for the petitioner further submitted that learned
court below without applying judicial mind has dismissed the
restoration application of the decree holder. Accordingly, he is
penalized for his no fault leading to miscarriage of justice.
Argument on behalf of Respondent
5. Learned counsel for the respondent has submitted that the
petitioner is emphasizing only on the date of dismissal of the Execution
Cases, when counsel for the petitioner could not attend the court being
busy in another court but prior to six years of the impugned order, no
steps were taken by petitioner in compliance of the order of the court,
for which no reasonable explanations has been offered. It is further
submitted that learned counsel for the petitioner was also directed vide
order dated 03.07.2023 of this Court to produce entire order sheet of
Execution Case No.1 of 2003 which would suggest the steps taken by
petitioner for securing the appearance of judgment debtor, which has
also not been complied by petitioner rather it is told before the Court
that he could not consult his client, that also adds negligence on part of
petitioner. Learned counsel for the respondent further submitted that
there is no illegality or infirmity in the impugned order calling for any
interference by way of this petition, which is fit to be dismissed.
Discussion, Reasons and Order
6. Obviously, the Execution Case Nos.01/2003/01/2007 were
instituted by petitioner and pending for admission and issuance of
notice against the judgment debtor. The impugned order clearly
indicates that the entire course of action taken by petitioner in
prosecution of aforesaid execution proceedings. Relevant portion of the
impugned order is quoted hereunder:-
"As stated aforesaid, it is very clear that the decree holder has been
gross negligent in complying with the court's order right from institution of
the case and even after 14 years of filing the case the decree holder has been
negligent in taking proper steps. Further, six year from 08.08.2011, the decree
holder has not complied on the direction of the court for taking proper steps for
appearance of the judgment debtor. The judgment debtor has given explanation
for non-appearance/for not taking proper steps only for the day, the case was
dismissed. In his petition for restoration and also in his affidavit In-chief, the
applicant has not stated reasons as to why he could not complied the order of
05.08.2011 and what prevented him for taking proper steps.
The negligent conduct of the decree holder his prima facie, evident from
the order sheet which has been discussed above. In my opinion, the decreed
holder has failed to give sufficient reasons for his non-compliance of the court's
order for such a long period, hence petition dated 14.11.2017 of the decree
holder is rejected".
7. Learned counsel for the petitioner has adhered to the plea taken
before the learned court below and has also failed to comply the order
of this Court to produce entire order sheet of the Execution Case.
In the case of Secretary, Department of Horticulture, Chandigarh
& Another Vs.Raghu Raj reported in (2008) 13 SCC 395 at para 23, the
Hon'ble Apex Court has held that:-
"it cannot be gainsaid that an advocate has no right to remain
absent from the court when the case of his client comes up for
hearing. He is duty-bound to attend the case in court or to make
an alternative arrangement. Non-appearance in court without
"sufficient cause" cannot be excused. Such absence is not only
unfair to the client of the advocate but also unfair and
discourteous to the court and can never be countenanced."
"It is settled principal of law depicted any Latin Maxim
"Vigilantibus Non Dormientius Aequitas Subventil" which
means that Equity aids the vigilant, not the dormant who sleep
over their rights".
In the case of G.C. Gupta Vs. N.K. Pandey, reported in (1988) 1
SCC 316, the Hon,ble Apex Court has held at para 16 as under:-
"inordinate delay is not merely a factor for the court to refuse
appropriate relief but also a relevant consideration it be so
minded not to unsettle settled things."
8. In view of the aforesaid discussion and reasons, I am of the
definite view that no sufficient cause has been offered by the petitioner
from dissuading to take proper steps in his case and the grounds taken
by the petitioner are not entertainable and justifiable under law.
Therefore, impugned order suffers from no illegality or infirmity
warranting any interference. Accordingly, this Writ Petition(Civil) is
dismissed.
(Pradeep Kumar Srivastava, J.)
Pappu/
