RAHUL TATYABA JAMDAR Vs. NARAYAN VISHNU NALAWADE

JUDGEMENT

(1.) This petition is filed by the decree holder to challenge the dismissal of his application for restoration of the execution application.

(2.) By order dtd. 30/8/2023, notice for final disposal of the petition was issued. When the petition was taken up for final disposal, learned counsel for the respondent raised a preliminary objection that the petition would not be maintainable as the impugned order is appealable under clause (ja) of Rule 1 of Order XLIII of the Civil Procedure Code, 1908 ('CPC'). Learned counsel for the respondent relied upon the decision of this court in the case of Dattatraya s/o Raghunath Jog Vs. Radhabai w/o Laxmanrao Ghate,2007(3) Mh.L.J 425. to support his submissions. He submitted that the provisions of Rules 105 and 106 of Order XXI of the CPC would apply for the restoration of the execution application. He thus submits that once the execution application is dismissed and a restoration application is filed, the same would be appealable in view of clause (ja) of Rule 1 of Order XLIII of the CPC. He submits that in the decision of Dattatraya Jog, it is held that Rules 105 and 106 of Order XXI of CPC apply for restoration of execution application.

(3.) Learned counsel for the petitioner submits that the impugned order was not passed under an application under Rule 106 of Order XXI of CPC. He submits that the execution application was dismissed in default on 1 st September 2014. Hence, the application for restoration was filed under Sec. 151 of the CPC. He submits that the learned judge refused to exercise inherent power under Sec. 151 of the CPC for the restoration of the execution application. He further submits that neither the execution application was dismissed under Rule 105 of Order XXI of CPC nor was the application filed under Rule 106 of Order XXI of CPC. Therefore, according to the learned counsel for the petitioner, the impugned order would not be appealable and the writ petition is therefore maintainable.