Rajasthan High Court
Puranchand S/O Fhatauliram vs Dineshchand S/O Brijbhushan ... on 1 February, 2023
Bench: Mahendar Kumar Goyal
[2023/RJJP/001209]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 17938/2019
1. Puranchand S/o Fhatauliram, Aged About 64 Years,
Resident Of Village Akhaigarh, Tehsil Nadbai District
Bharatpur (Rajasthan)
2. Shivcharan S/o Fhatauliram, Resident Of Village
Akhaigarh, Tehsil Nadbai District Bharatpur (Rajasthan)
(Deceased) Through His Legal Heir.
2/1. Omvati W/o Shivcharan, Resident Of Village
Akhaigarh, Tehsil Nadbai District Bharatpur (Rajasthan)
2/2. Surendra S/o Shivcharan, Resident Of Village
Akhaigarh, Tehsil Nadbai District Bharatpur (Rajasthan)
(Deceased) Through His Legal Heir.
2/2/1. Vishna W/o Surendra, Resident Of Village
Akhaigarh, Tehsil Nadbai, District Bharatpur (Rajasthan)
2/2/2. J P Kumari D/o Surendra,
2/2/3. Kalpana D/o Surendra, Minor Through Natural
Guardian Mother Vishna W/o Surendra, Resident Of
Village Akhaigarh, Tehsil Nadbai, District Bharatpur
(Rajasthan)
2/3. Mahendra S/o Shivcharan, Resident Of Village
Akhaigarh, Tehsil Nadbai, District Bharatpur (Rajasthan)
3. Chawanprakash S/o Fhatauliram, Resident Of Village
Akhaigarh, Tehsil Nadbai, District Bharatpur (Rajasthan)
----Petitioners
Versus
1. Dineshchand S/o Brijbhushan, Resident Of Village
Akhaigarh, Tehsil Nadbai, District Bharatpur (Rajasthan)
At Present Residing At 144 Janakpuri-II, Near Imli Phatak,
District Jaipur (Rajasthan)
......Respondents
2. Manak Chand S/o Fhatauli Ram, Resident Of Akhaigarh,
Tehsil Nadbai, District Bharatpur (Rajasthan) (Deceased)
----Proforma/Respondents
For Petitioner(s) : Mr. H.R. Kumawat
For Respondent(s) : Mr. Mahesh Chand Gupta for
Mr. G.P. Sharma
[2023/RJJP/001209] (2 of 4) [CW-17938/2019]
HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL
Judgment
01/02/2023
This writ petition under Article 227 of the Constitution of
India assails the legality and validity of the order dated
24.09.2019 passed by the learned Senior Civil Judge, Nadbai,
District Bharatpur (for brevity, "the learned Executing Court") in
Civil Case No.21/2014 whereby, while treating the application filed
by the respondent No.1/decree holder (for brevity, "decree
holder") under Order 21 Rule 106 CPC as an application under
Section 151 CPC, the order dated 17.01.2013 has been set aside
and the execution petition is restored to its original number.
The relevant facts in brief are that the execution petition filed
by the decree holder for execution of the decree dated
24.07.2003, was dismissed in default by the learned Executing
Court vide order dated 17.01.2013. An application filed by him
under Order 21 Rule 106 CPC for its restoration has been allowed
by the learned Executing Court vide order dated 24.09.2019
treating the same to be under Section 151 CPC.
Assailing the order, learned counsel for the
petitioners/judgment debtors (for brevity, "petitioners"),
submitted that the learned Executing Court erred in restoring the
execution petition to its original number inasmuch as the
application under Order 21 Rule 106 CPC was filed beyond the
period of 30 days. He, therefore, prays that the writ petition be
allowed, the order dated 24.09.2019 be quashed and set aside
and the application filed by the decree holder be dismissed.
[2023/RJJP/001209] (3 of 4) [CW-17938/2019]
Per contra, learned counsel for the decree holder submits
that since the execution petition was not listed for hearing on
17.01.2013, its dismissal in default could not have been reckoned
as under Order 21 Rule 105 CPC and therefore, the learned
Executing Court did not err in restoring the same treating the
application filed by him under Order 21 Rule 106 CPC as under
Section 151 CPC which attracts no limitation. He, therefore, prays
that the writ petition be dismissed. He, in support of his
submissions, relies upon a judgment of this Court in case of Lal
Chand Vs. Bhagyawati, AIR 2018 Raj. 173.
Heard. Considered.
Indisputably, the execution petition was not listed on
17.01.2013 for hearing; but, for report on the warrant issued to
the petitioners. In view thereof, its dismissal in default could not
have been under Order 21 Rule 105 CPC. A co-ordinate Bench of
this Court has, in case of Lal Chand(supra) involving identical
controversy, held that the dismissal in default cannot be held
under Order 21 Rule 105 CPC if the execution petition is not listing
for hearing, the provisions of Order 21 Rule 106 CPC are not
attracted and the restoration can be done invoking inherent
jurisdiction of this Court under Section 151 CPC.
In the present case also, the learned Executing Court has
allowed the application filed by the decree holder treating it to be
an application under Section 151 CPC which did not attract the
period of limitation as envisaged under Order 21 Rule 106 CPC.
In view thereof, this Court finds no reason to interfere with
the order impugned dated 24.09.2019 passed by the learned
Executing Court in exercise of its judicious discretion.
[2023/RJJP/001209] (4 of 4) [CW-17938/2019]
Accordingly, this writ petition is dismissed being devoid of
merit.
(MAHENDAR KUMAR GOYAL),J
Sudha/59
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