Rule 105(2) of Order 21 of CPC contains the provision relating to dismissal of the execution application due to non-appearance of applicant 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.
Now, if the Execution Petition has been dismissed for want of prosecution and for not taking steps, as mentioned in your question, then it may not covered under Rule 106 for restoration which applies to dismissal on the ground of non-appearance.
However, I am of the opinion that the court still has the power to restore the execution petition even in this case. This can be done in the exercise of inherent powers of the court under Section 151 of the Civil Procedure Code:
“151. Saving of inherent powers of Court.— Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.”
Therefore, I feel that an application can be filed before the court for restoration of the execution petition which has been dismissed for want of prosecution and for not taking steps, under Section 151 of CPC. If the court is satisfied, it may pass appropriate orders.
In fact, the judgment of Bombay High Court, mentioned by you [however, you have mentioned wrong names of parties, the correct citation of parties’ names is: Suglabai Prabhu Jaishete v. Rangrao Govindrao], also supports a similar view that it can be done under Section 151 CPC where it cannot be done under Rule 106 of Order 21 of CPC.
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.
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