RENU KUMARI Vs. VISHWANATH CHAUDHARY

JUDGEMENT

(1.) The decree holder of Money Suit No. 128 of 1964 in the Court of Munsif, Supaul is the petitioner here. That suit has been decreed in favour of the petitioner. Execution was levied being Execution Case No 8 of 1979. From the ordersheet of the Court below it appears that on several dates namely 30th April, 1981, 14th May, 1981, 26th May, 1981 and 2nd June, 1981 the petitioner decree holder had been directed to file talbana etc. as well as the attachment and sale proclamation processes. That having not been duly complied with the execution case was dismissed on 2nd June, 1981. An application for restoration of the execution case was thereafter filed by the petitioner, which was registered as Misc. Case No. 5 of 1982. By the impugned order dated 28-1-1982 the application of the petitioner for reiteration of the execution case has been rejected. That has aggrieved the petitioner.

(2.) The only ground, on which the executing Court has refused to exercise its jurisdiction has been given in tfee impugned order as the non-maintainability of the restoration application under Section 151 of the Civil P. C. (hereinafter referred to as 'the Code'). The learned Execution Munsif has been under an impression that the application for restoration would be governed by the provision of Order 21, Rule 106 (1) of the Code and therefore, Section 151 cannot be attracted Order 21, Rule 106 (1) lays down, inter alia, that "the applicant, against whom an order is made under Sub-rule (2) of Rule 105 ..... may apply to the Court to set aside the order (ex parte order), and if he satisfies the Court that there is sufficient cause for his non-appearance when the application was called on for hearing (underlining is mine for the sake of emphasis), the Court shall set aside the order on such terms as to costs or otherwise as it thinks fit, and shall appoint a day for the further hearing of the application." The period of limitation of thirty days has been prescribed in Sub-rule (3) of Rule 106 for the tiling of an application under Sub-rule (1). It is manifest from the language of Rule 106 (1) that the application contemplated by this provision is, inter alia, with regard to the selling aside of an ex party order under the provisions of Rule 105 (2). It is pertinent, therefore, to quote the language of the aforesaid provision. It reads thus :-- "Where on the day fixed or on any other day to which the hearing may be adjourned the applicant does not appear when the case is called on for hearing the Court may make an order that the application be dismissed." There can be no ambiguity about the interpretation of this particular statutory provision. It envisages the dismissal of an application for default if on the date fixed for the hearing of the application the applicant fails to appear. The date of dismissal therefore, in this provision is referable to the date fixed for the hearing of the application. In the instant case the date on which the execution case was dismissed namely, 2-6-1981 was not the date fixed for the hearing of any application. The execution case was dismissed simply on the ground that Talbana etc., attachment processes and sale proclamation processes had not been duly filed by the petitioner-decree holder. Mr. Tara Kant Jha, learned Counsel for the judgment-debtor opposite party contended that there was nothing to be heard and all that was to be done was a mere technical procedural requirement what had not been complied with on that date. Assuming this argument to be correct, on submissions made by the learned Counsel, it is quite clear that the dismissal on 2nd June, 1981 was not on account of any ground mentioned in Rule 105 (2), for if there was anything to be beard no date could have been fixed for hearing. But I am afraid, the argument of Mr. Jha is fallacious It may not always be a mere technical procedural responsibility to be discharged by the petitioner, but after the filing of the valuation list, if any. the Court below may have to hear the parties on such a matter at least as provided in Rule 105. Therefore, it cannot be said that in cases of this nature, in no circumstance, can Sub-rule (1) of Rule 105 be applicable.

(3.) Be that as it may, learned Counsel for both the parties are agreed that on the facts and in the circumstances, as discussed above. Rule 105 (2) has absolutely no application and therefore, the petitioner was not enjoined in law to file any application under Sub-rule (1) of Rule 106 within the period of limitation prescribed in Rule 106 (3). The application under Section 151 of the Code is, therefore, legally maintainable and the Court below must be held to have failed to excercise its jurisdiction vested in law in not going into the merit of the application filed by the petitioner.