GULABCHAND Vs. BALMUKUND

JUDGEMENT

(1.) THIS is an application under S. 115 Civil Procedure Code and Art. 227 of the Constitution of India for setting aside an order made by the Civil Judge, Second Class, Jawad and upheld by the Additional District Judge, Neemuch, in appeal, refusing to restore an application for execution of a decree which had been dismissed earlier for default of appearance of the decree -holder. The learned Civil Judge took the view that an execution petition dismissed for default could not in law be restored. This view is clearly wrong and opposed to a decision of Division Bench of this Court (Dawoolal and others vs. Kheduprasad and other : A.I.R. 1949 Nag 160) where it has been held that an executing Court has inherent power to dismiss an application for execution and also to restore it to the file under Section 151 C.P.C. and that, save in most exceptional cases, it ought not to resort to Section 151 in so far as restoration is concerned. A similar view was taken by the Madhya Bharat High Court in Daryavbai vs. Shantilal (1954 MBLJ 1457) where it was pointed out that O. 9, R. 9 of the Civil Procedure Code was not applicable to execution proceedings and that when an execution is dismissed for default, it is dismissed not under O. 9 but in the exercise of inherent powers of the Court and that if the Court has power to dismiss an execution application for default in exercise of inherent jurisdiction, it has also the power to restore it in the exercise of that jurisdiction. In the present case, learned Civil Judge refused to restore the application for execution thinking that he had no power to do so, and not on the ground that even if he had that power it would not be proper to restore the petition. In our opinion, in the circumstances of the case, the application for execution ought to be restored.

(2.) THE result is that this petition is accepted, the decisions of the Courts below are set aside, the application for execution filed by the petitioner is restored and the learned Civil Judge Is directed to proceed with the execution in accordance with law. In the circumstances of the case, there will be no order as to costs.