Ratan Ramrao Jadhav vs Rajesh Khanderao Vayvahare & Anr.

Rule. Rule made returnable forthwith and heard finally by consent of the parties.

The Petitioner is challenging the order passed by the Civil Judge, Senior Division, Shrirampur, in Misc. Civil Application No. 14 of 2023, wherein the order passed in Regular Darkhast No. 54 of 2011, dismissing the Regular Darkhast, for want of steps vide order dated 19th August 2023, has been set aside by allowing the application for restoration.

The Petitioner herein is the Respondent No.1 judgment debtor, who has filed the present Writ Petition challenging the said order in the Civil Misc. Application No.14 of 2023, which is allowed subject to payment of cost of Rs.2,000/-, by restoring the Regual Darkhast at its original stage subject to compliance of payment of costs.

It is contention of the Petitioner that during the pendency of the execution proceeding, various applications have been filed by the parties and one such application Exhibit-34 was pending for order before the Executing Court, which is evident from the Roznama of the various dates. It is submitted that the Roznama shows that the decree holder has failed to take steps and the execution proceedings remained pending at the stage of taking steps by the decree holder. In such situation, the Executing Court has been pleased to dismiss the Petition for execution filed by the Respondent No.1/decree holder.

The learned Advocate, Mr.Palod for the Petitioner submits that when the Civil Misc. Application No.14 of 2023, has been filed by the decree holder for restoration of the Execution Petition, while allowing the application, the learned Judge has failed to take into consideration that the application for restoration was beyond period of limitation. The application for restoration was not accompanied with an application seeking condonation of delay. According to the learned Advocate, in case of the order dismissing the application for want of prosecution, the case would be governed by the Order 21, Rules 105 and 106 of the Civil Procedure Code (hereafter referred as ‘CPC’). The Order 21 and Rule 105 contemplates a situation when an application has been filed in the execution proceedings, the Court may fix a day for hearing of the application and in case on the day fixed for the hearing it may adjourn to further date inspite of that if the parties do not appear on the adjourned date. The Court may pass an order dismissing the application, if the party fails to appear. Upon such order being passed, if such an order is passed ex parte, the applicant against whom such order has been passed under Sub-rule(2) of Rule 105, the concerned party may apply to the Court to set aside the said order. However, this application shall be made within 30 days from the date of order.

Thus, according to him, since the decree holder has remained absent on the day fixed for hearing, the order dismissing the Regular Darkhast has been passed, which would be governed Rule 105 of Order 21 and the restoration application was required to be filed within 30 days, which has not been filed within 30 days as required under law.

It is contended that order of dismissing the execution has been passed on 19^th August, 2023, whereas the restoration application has been filed on 26^th September, 2023, which is beyond the 30 days period of limitation, prescribed under Rule 106(3) of Order 21. Thus, the application which is filed without condonation of delay and entertained without condoning the delay is unsustainable.

Further relying on the Roznama, the learned Advocate, Mr. Palod would contend that, the Roznama would disclose that, the application Exhibit-34 filed by the decree holder was pending for orders from 13^th November, 2021. It was pending for taking steps for a long period. The Roznama dated 22^nd April 2022 would disclose that, despite the fact that the previous Roznama discloses that the matter was adjourned from time to time for passing orders on Exhibit-34, without there being any order on Exhibit-34, the matter was listed for taking further steps. Even on 10^th July, 2023, the decree holder as well as his Advocate, remained absent, therefore, by way of last chance, the matter was directed to be listed for passing order of dismissal. Yet, the decree holder has remained absent on 19^th August, 2023. Therefore, taking into consideration the long pendency of the Darkhast Application, due to failure of the decree holder to take steps, the learned Judge has rightly passed an order dismissing the Darkhast.

He would rely on the Judgment of Rohan Vishwanath Khedekar V/s. The Divisional Commissioner Konkan passed by the Coordinate Bench of this Court on 14^th August, 2024, in support of his submissions. He also relies on the Judgment of the Hon’ble Supreme Court in the case of Damodaran Pillai and Ors. V/s. South Indian Bank Ltd., AIR 2005 SC 3460, to contend that in absence of any express power delay cannot be condoned. In view of specific provision contained under Rule 106 of Order 21, the question of invoking powers under Section 151 of the CPC would not arise. Thus, according to him invocation of powers as provided under Section 151 of the CPC by the learned Civil Judge Senior Division, Shrirampur, is arbitrary and untenable. Therefore, deserves to be quashed and set aside.

Per contra, the learned Advocate for Respondent No.1/decree holder, Mr. Karpe, submitted that so far as the objection as to Roznama and its contents is concerned, the Petitioner Judgment Debtor No.1 has never raised such objection before the Trial Court. According to him, when the decree holder filed the execution proceedings for execution of decree dated 21^st March, 2011, the present Petitioner filed Regular Civil Appeal No.81 of 2012. Therefore, the execution application filed by the Respondent No.1/decree holder could not be proceeded with during the pendency of the appeal. The appeal came to be dismissed by the District Court by an order dated 12^th June, 2017. It is only on account of the pendency of the appeal, the execution proceeding could not proceed ahead.

It is his contention that for a long period, the status of the Regular Darkhast was shown for compliance of application at Exhibit-34 and thereafter for orders on Exhibit-34. The Roznama from 3^rd December, 2021 discloses the status as “for further orders”. When the matter was listed before the Lok Adalat, the compromise between the parties could not take place. Therefore, again the matter was listed before the Court and the status of the matter was shown for taking steps as on 22^nd April, 2022.

It is his contention that the date on which the matter was listed on 19^th August, 2023, neither the decree holder nor his Advocate could remain present before the Court. Hence, the order dismissing the Regular Darkhast for want steps came to be passed on 19^th August, 2023. On the aforesaid background, the Respondent No.1 has filed an application for setting aside the said order on 26^th September, 2023, which was entertained by the learned Judge and the Civil Misc. Application has been allowed by invoking inherent powers of the Court under Section 151 of the CPC. The learned Judge has placed reliance on the Judgment of this Court Bootanijum Ltd. V/s. Babu Raghu (since deceased) through Legal heirs, 2019 (2) MhLJ 287, wherein this Court has observed that in the case the Execution Application is dismissed on the ground that the steps were not taken. Section 151 of the CPC can be invoked by the Court in exercise of its inherent powers.

It is submitted that the application of the decree holder was accompanied by certificate of the doctor, which certified that the Applicant was under the medical treatment for viral infection on the day on which the order dismissing the Regular Darkhast for want of taking steps came to be passed. While passing such order, the learned Judge has also held that there is no justification for the absence of the decree holder on the previous date, i.e., on 10^th July, 2023. Since the absence on the subsequent date was found to be justifiable, the learned Judge has taken a view that the earlier absence can be compensated by granting appropriate cost to the opponent. Thus, no prejudice is caused to the Petitioner herein.

According to him, the case of the decree holder would not be governed by Rules 105 and 106 of Order 21, and the order has been rightly passed by the learned Judge by invoking inherent powers under Section 151 of the CPC. He would contend that order under Rule 105 of Order 21 contemplates that only in case the application is fixed for hearing and on the fix day of hearing, the party fails to appear and the matter is adjourned, even on the next date the Applicant does not appear for hearing, the Court is empowered to pass an order dismissing the application. In the present case, according to him, the matter was never fixed for hearing on the application, therefore, Rules 105 and 106 of Order 21 of CPC will not be attracted in present case. As such, the learned Civil Judge Senior Division, Shrirampur has rightly passed order dated 4^th January, 2025, taking into consideration, the merits of the application hence it does not deserve any interference by this Court.

I have heard the respective parties and have gone through the documents placed on record as well as the provisions of law relied upon by the respective Advocates. So far as the filing of Regular Civil Suit No.45 of 2008, pending before the Civil Judge Senior Division is not disputed. Similarly, that the Roznama which is part of record is also not disputed. From the pleadings and submissions of the parties, it is evident that the Judgment and order which is sought to be executed by the decree holder was subject matter of challenge before the District Court in Regular Civil Appeal No.81 of 2012, which was dismissed on 12^th June, 2017. After that the application was filed by the decree holder on 4^th January, 2018, for removal of the excess construction made by the Petitioner by directing Respondent No.2/Shrirampur Nagar Parishad, to remove the said additional construction. In spite of the directions issued by the Court on 12^th April, 2019, the order was not implemented by Respondent No.2/Shrirampur Nagar Parishad. Therefore, once again an application was filed at Exhibit-34 making the same prayer for removal of the excess construction made by Respondent No.1. This application was pending from 31^st December, 2019, on which an order was passed, issuing notice to the Shrirampur Nagar Parishad. Since, no say was filed by the Shrirampur Nagar Parishad an order came to be passed to proceed without say.

On this background, the Regular Darkhast was pending before the Executing Court and the status of Regular Darkhast was shown for taking steps, by the decree holder, therefore, there is no substance in the contention of the Petitioner that the decree holder had failed to take steps for a long time, which has resulted in the order dismissing the Regular Darkhast. In fact, the decree holder is not going to be benefited by prolonging the execution and inviting an adverse order. In support of the application for restoration the Applicant decree holder has examined himself and also Dr.Pramod Anant Deshpande at Exhibit-35 in support of the medical certificate issued by him, about the illness which prevented the Respondent No.1, from attending the Court on 19^th August, 2023.

On the other hand, the Respondents have not led any oral evidence and closed their evidence by filing pursis at Exhibits-37 and 38 as observed in the impugned order. Therefore, so far as the filing of application and resistance by Respondent Nos.1 and 2 is concerned, it appears that the resistance is perfunctory. Only upon passing of order of restoration, the same is being challenged by the Petitioner on the ground that there has been delay in filing the application.

The period of limitation of 30 days would be applicable only in case the said application is treated to be the one filed under Rule 106 of Order 21 of CPC. So far as the impugned order against, which the Misc. Civil Application No. 14 of 2023, is filed, it is evident that the matter has been dismissed for want of steps and it was not fixed for any hearing, therefore, the provisions of Order 21, Rules 105 and 106 would not be attracted in the present case.

Order 21, Rules 105 and 106, which read thus :

The Roznama dated 10^th July, 2023, as well as of the previous dates, discloses that the learned Advocate for the decree holder was absent on 15^th April, 2023 and 14^th June, 2023. While on 3^rd March, 2023, the matter was adjourned for taking further steps, thus the Roznama discloses that the Regular Darkhast was never fixed for hearing on the application on any of the dates prior to passing of the order. In order to attract the Rule 106(3) of Order 21 of CPC which provides for application of condonation of delay, it is necessary that the application which is pending in the Darkhast is fixed for hearing and on failure of applicant to appear on the day fix for hearing, the Court should have passed an order dismissing the application. When such order is passed under Rule 105(2), an application for restoration is to be filed within 30 days. Since that was never the case in the pending Regular Darkhast, the learned Civil Judge, Senior Division, Shrirampur, has rightly invoked the powers under Section 151 of the CPC and passed the order of restoration taking into consideration the satisfactory explanation given by the decree holder, which was proved by examining himself as well as the doctor who had issued the medical certificate. The judgment debtor has been sufficiently compensated by imposing cost on the decree holder. Thus the order impugned does not warrant any interference, since the Petitioner has failed to make out a case for causing interference in the order impugned.

Consequentially, the Writ Petition stands dismissed. Rule is discharged.