Rule 105(2) of Order 21 of CPC contains the provision relating to dismissal of the execution application for default by laying down that 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.
Rule 106(1) provides 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, and if he satisfies the Court that there was sufficient cause for his non-appearance when the application was called on for hearing, 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.
Rule 106(3) provides that an application under sub-rule 106(1) shall be made within 30 days from the date of the order, or where, in the case of an ex parte order, the notice was not duly served, within thirty days from the date when the applicant had knowledge of the order.
In your case, since you are the applicant in the execution petition, the period of limitation under Rule 106(3) is 30 days for you.
In this regard, in the case of Damodaran Pillai v. South Indian Bank Ltd., (2005) 7 SCC 300 : AIR 2005 SC 3460, the Supreme Court has held that Rule 106(3) of Order 21 of CPC clearly shows that when an application is dismissed for default in terms of Rule 105(2), the starting point of limitation for filing of a restoration application would be the date of the order and not the knowledge thereof. As the applicant was represented in the proceeding through his advocate, his knowledge of the order is presumed. The starting point of limitation being knowledge about the disposal of the execution petition would arise only in a case where an ex parte order was passed [which would be under Rule 105(3)] and that too without proper notice upon the judgment-debtor and not otherwise. Thus, if an order has been passed dismissing an application for default under Rule 105(2), the application for restoration thereof must be filed only within a period of thirty days from the date of the said order and not thereafter. Therefore, the date when the decree-holder acquired the knowledge of the order of dismissal of the execution petition is wholly irrelevant.
Therefore, in your case, even if you came to know about the dismissal of the execution application at a late stage, the period of limitation of 30 days would start from the date of order of dismissal itself, as held by the Supreme Court in the above case.
In the above case, the Supreme Court further held that application of Section 5 of the Limitation Act (under which delay can be condoned for sufficient cause being shown to the court) has been expressly excluded in proceedings under Order 21 of CPC. Therefore, even an application under Section 5 of the Limitation Act was not maintainable. Further, the court held that the civil court in the absence of any express power cannot condone the delay. For the purpose of condonation of delay in the absence of applicability of Section 5 of the Limitation Act, the court cannot invoke its inherent power.
In view of the above, it appears that you cannot file an application for restoration of the executive petition which has been dismissed for default since the limitation period of 30 days has already expired in your case and the delay cannot be condoned.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
.
