T.N. DUBEY Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) This petition has been brought being aggrieved by the order dtd. 5/3/2018 by which the application filed by the petitioner for restoration of the Execution Case No.02-A/2012 was dismissed.

(2.) The petitioner and one another are the decree holders in the Civil Suit No.02-A/2012, by which relief of specific performance of contract has been granted in favour of the petitioner against defendant Late Anand Ram, who is now expired and represented by the private respondents. The Execution Case was filed and is pending, which was dismissed for non-prosecution on 12/12/2017.

(3.) It is submitted by the learned counsel for the petitioner, that the petitioner then filed application for restoration of the Execution Case, on ground that it was fixed in the National Lok Adalat on 9/12/2017. The mother of the petitioner suffered a fracture in her leg because of which the petitioner was engaged in taking her to the hospital and could not appear before the Court, therefore, he had sufficient reason for his non-appearance and he had received no notice of date 12/12/2017. The learned Executing Court has also made observation in the impugned order on the executability of the decree, which was totally uncalled for. As there was no such objection raised by the respondent side and no opportunity was given to the petitioner to make his submission on the point on executability of the decree. It is further submitted that vide order dtd. 5/1/2018, the learned Execution Court had allowed the application for restoration of the Execution Case, therefore, the impugned order that has been passed is a review of the earlier order. A sou-moto review by this Court on its own order is not permissible under Sec. 114 of C.P.C. and also under Order 47 Rule 1 of C.P.C. Hence, the order passed is totally erroneous.