PURANCHAND Vs. DINESHCHAND BRIJBHUSHAN

JUDGEMENT

(1.) This writ petition under Article 227 of the Constitution of India assails the legality and validity of the order dtd. 24/9/2019 passed by the learned Senior Civil Judge, Nadbai, District Bharatpur (for brevity, "the learned Executing Court") in Civil Case No.21/2014 whereby, while treating the application filed by the respondent No.1/decree holder (for brevity, "decree holder") under Order 21 Rule 106 CPC as an application under Sec. 151 CPC, the order dtd. 17/1/2013 has been set aside and the execution petition is restored to its original number.

(2.) The relevant facts in brief are that the execution petition filed by the decree holder for execution of the decree dtd. 24/7/2003, was dismissed in default by the learned Executing Court vide order dtd. 17/1/2013. An application filed by him under Order 21 Rule 106 CPC for its restoration has been allowed by the learned Executing Court vide order dtd. 24/9/2019 treating the same to be under Sec. 151 CPC.

(3.) Assailing the order, learned counsel for the petitioners/judgment debtors (for brevity, "petitioners"), submitted that the learned Executing Court erred in restoring the execution petition to its original number inasmuch as the application under Order 21 Rule 106 CPC was filed beyond the period of 30 days. He, therefore, prays that the writ petition be allowed, the order dtd. 24/9/2019 be quashed and set aside and the application filed by the decree holder be dismissed. Per contra, learned counsel for the decree holder submits that since the execution petition was not listed for hearing on 17/1/2013, its dismissal in default could not have been reckoned as under Order 21 Rule 105 CPC and therefore, the learned Executing Court did not err in restoring the same treating the application filed by him under Order 21 Rule 106 CPC as under Sec. 151 CPC which attracts no limitation. He, therefore, prays that the writ petition be dismissed. He, in support of his submissions, relies upon a judgment of this Court in case of Lal Chand Vs. Bhagyawati, AIR 2018 Raj. 173.