Civil Revision No.5792 of 2003 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.5792 of 2003 (O&M) Date of Decision : 27.11.2009 Haryana State Coop.Supply and Marketing Federation Ltd. .....Petitioner Versus M/s Vishwa Nath Vijay Kumar .....Respondent CORAM: HON'BLE MRS.JUSTICE SABINA Present: Ms.Kamla Malik Advocate for the petitioner Mr.Rajesh Sethi, Advocate for the respondent. * * * Sabina,J.(Oral) Petitioner had filed a suit for recovery of Rs.1,02,580.78 paise. The said suit was decreed vide judgment and decree dated 03.08.1998. Petitioner filed an execution petition. However, the same was dismissed in default on 03.06.2000. The application for restoration of the execution petition was filed on 27.04.2002. The executing court dismissed the application being time barred vide order dated 22.01.2003. Aggrieved by the same, petitioner preferred an appeal and the same was dismissed by Additional District Judge vide order dated 18.08.2003. Hence, the present revision petition. After hearing the learned counsel for the parties, I am of the opinion that the instant petition deserves to be allowed. Suit filed by the plaintiff for recovery was decreed on 03.08.1998. Thereafter, the execution petition was immediately filed. Civil Revision No.5792 of 2003 (O&M) 2 Warrant of attachment of the property of the judgment debtor were ordered to be issued in the execution proceedings from time to time. The interim orders, passed from time to time in the execution petition, have been reproduced in the grounds of petition. In fact, the property of the judgment debtor was ordered to be auctioned. On 25.02.2000, the case was taken up as 26.02.2000 had been declared a holiday. The case was adjourned to 30.04.2000. On 25.02.2000, none was present. Thereafter, the case was again taken up on 29.04.2000 as 30.04.2000 had been declared a holiday and the case was adjourned to 03.06.2000 for awaiting auction proceedings. On 03.06.2000, the execution petition was dismissed in default. Although in the present case, the application for restoration was filed after about 1-1/2 years yet in the facts and circumstances of the present case, the same was liable to be restored. The petitioner had got a decree in its favour and had filed the execution petition in time. The property of the judgment debtor was ordered to be auctioned and the possibility that the petitioner did not know about the adjourned date as the case was taken up a day prior to the date fixed, cannot be ruled out. The plea taken by the petitioner was that its non-appearance on 03.06.2000 was not intentional but due to the fact that the counsel or his clerk could not appear before the executing court on 03.06.2000 as they were out of station. It is only when the petitioner made inquiries about the proceedings of the execution from his counsel that it came to know that the execution petition had infact been dismissed in default. An oral request had been made by the petitioner for condonation of delay in filing the application Civil Revision No.5792 of 2003 (O&M) 3 for restoration of the execution petition. When substantial justice and technical consideration are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of non- delibrate delay. There is no presumption that delay had been occasioned delibrately. Petitioner did not stand to benefit by resorting to delay. Rather the petitioner had a decree in its favour and was simply seeking the execution of the decree passed by the court. It is also the duty of the court that the decree, passed by it, is duly complied with. Judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Moreover, on 3.6.2000 the case was listed for awaiting auction proceedings. In the facts and circumstances of the present case, the application for restoration of the execution petition was liable to be allowed. The other side could have been compensated with costs. Accordingly, this petition is allowed. The impugned orders are set aside. Consequently, the application for restoration of the execution petition is allowed subject to payment of Rs.5000/- as costs. 25th Nov.2009 (SABINA) Seema-II Judge