BENGAL INVESTMENT LIMITED Vs. SANKAR DAS

JUDGEMENT

(1.) Challenge is to the order dated 30.03.2019 passed by the learned Civil Judge (Junior Division), 5th Court, Howrah in Title Execution Case No. 12 of 2014, thereby rejecting an application under Order XXI Rule 106 read with Section 151 of the Code of Civil Procedure filed by the decree holder/petitioner.

(2.) The petitioner/decree-holder as plaintiff filed a suit for eviction and for recovery of khas possession being Title Suit No. 177 of 2009 against the judgment debtor /opposite party before the Court of learned Civil Judge (Junior Division), 5th Court, Howrah. The judgment debtor /opposite party neither entered appearance nor filed written statement against the plaint and as such the said suit proceeded ex parte. Subsequently, the petitioner got the ex parte judgment and decree in the said suit and petitioner/decree-holder initiated execution proceeding being Title Execution Case No. 12 of 2014. Due to the laches of the learned Advocate appearing for the decree-holder/petitioner, the said execution case was dismissed for default on 19.03.2016 and, accordingly, the decreeholder/petitioner filed an application under Order XXI Rule 106 read with Section 151 of the Code of Civil Procedure for restoration and recalling of the order of dismissal. The said application filed by Decree holder/petitioner for restoration and recalling of the order of dismissal was rejected by the order impugned. So, the petitioner filed this application.

(3.) Having considered the submissions of the learned Advocate and on perusal of the materials on record and the impugned order, it appears that the petitioner got the ex parte decree in connection with Title Suit No. 177 of 2009 and the Execution Case being Title Execution Case No. 12 of 2014 was initiated by the petitioner. On 19.03.2016 the said execution case was dismissed for default. The application under Order XXI and Rule 106 read with Section 151 of the Code of Civil Procedure for restoration and recalling of order of dismissal was filed on 15.09.2018, i.e. after a period of two and half years of dismissal. Sub-Rule (3) of Rule 106 of Order XXI of the Code of Civil Procedure runs as follows:-