IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 6TH NOVEMBER 2009 / 15TH KARTHIKA 1931 FAO.No. 280 of 2009() --------------------- LAR.200/1977 of III ADDL.SUB COURT, ERNAKULAM .................... PETITIONERS/DECREE HOLDERS: -------------------------------------------- 1. C.J.GEORGE, S/O.LATE C.P.JOHN, AGED 77 YEARS, 1/263, CHURCH STREET, FORT KOCHI. 2. C.J.JOHNSON, S/O.LATE C.P.JOHN, CHAMMANAM HOUSE, CEMETERY ROAD, MISSION QUARTERS, TRICHUR-1. 3. MR.C.J.ABRAHAM, S/O.LATE C.P.JOHN CHAMMANAM HOUSE, AVENUE ROAD, TRICHUR-5. BY ADV. SRI.GEORGE THOMAS (MEVADA) RESPONDENT(S): JUDGEMENT DEBTOR: ------------------------------------------ STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 06/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = F.A.O. NO. 280 OF 2009 = = = = = = = = = = = = = = = Dated this the 6th day of November, 2009. J U D G M E N T This appeal is preferred against the order of the Subordinate Judge, Ernakulam in E.A.824/08 and 825/08 in E.P.198/99 in LAR 200/77. The petitions were filed under Order 21 Rules 105, 106 and S.151 of Code of Civil Procedure and u/s 5 of the Limitation Act to condone the delay of 19 days in filing the petition for restoration of the E.P. The learned executing Court after consideration of the materials held that there are no grounds to condone the delay and therefore dismissed the delay condonation application and consequently dismissed the E.P. as well. It is against that decision the decree holder has come up before this Court with this appeal. Heard the appellant as well as the Government Pleader. 2. At the out set I may like to state the law to be followed in these types of cases. Order 21 Rules 105 and 106 envisage a situation when the matter is posted for F.A.O. 280 OF 2009 -:2:- hearing. When a matter is posted for hearing and the matter is dismissed for default on account of the absence of the decree holder or when a matter is posted and the judgment debtor is absent and an exparte order is passed, Order 21 Rules 105 and 106 will be applicable to such cases. Under the said rules, under Rules 105(3) and 106(3) a period is fixed for filing a restoration application, i.e. 30 days from the date of the order. It is also explicitly made clear by the various decisions of the Court including a decision of the Apex Court reported in Damodaran Pillai v. South Indian Bank Ltd. AIR 2005 S.C. 3460 held that when a matter is disposed of invoking order 21 Rules 105 and 106 unless a petition is filed within 30 days the petitioner cannot resort to the help of S.5 of the Limitation Act to condone the delay and therefore there is no other remedy left out for the party. So the crucial question to be decided in this case is to find out whether really the dismissal is under Order 21 Rules 105 or 106. 3. A perusal of the order passed by the learned Subordinate Judge would reveal that a direction was given to the decree holder to take steps and file balance statement. F.A.O. 280 OF 2009 -:3:- It was being prolonged at the request of the decree holder and ultimately on 14.8.2008 when the case was called the decree holder was absent, no step was taken and as there was no representation the execution petition was dismissed for default. So it is very clear that the dismissal of the execution application was not when it was posted for hearing but when it was posted for steps. Therefore neither Order 21 Rules 105 or 106 is applicable to such disposals. 4. Then the next question is what will be the relevant provision. The learned Judge in the decision reported in Radhakrishnan v. State of Kerala (2006 (1) KLT 28) held that, “This means that E.A.245/98 though one filed under O.21 R.106(1) CPC was really one under S.151 CPC invoking the inherent power of the Court to restore the execution petition dismissed for default on a date on which the E.P. was not posted for hearing. There is no time limit prescribed for filing an application for restoration by invoking the inherent power of the Court under S.151 CPC.” F.A.O. 280 OF 2009 -:4:- I also find support to this view in the decision of the Orissa High Court reported in Dambarudhar Mohanta v. Mangulu Charan Naik (AIR 2004 (Orissa) 126. Execution cases when dismissed for default and there is a prayer for restoration execution proceedings cannot be restored on application under order 21 Rule 106 and the only provision that is applicable is S.151 of the Code of Civil Procedure. 5. So from the facts emanating in the case it is very clear that it was a case which was dismissed for default when the matter was not posted for hearing and therefore it is a dismissal under S.151 of Code of Civil Procedure and therefore restoration process is also to be done u/s 151 of the Code for which there is no time limit. 6. Now the only question to be considered is whether there are sufficient grounds for restoration. The decree holder has started fighting right from 1997 onwards and he is knocking at the doors of the Courts after Courts for the last 32 years without a finality to his litigation. He is a person who is entitled to receive the amount from the Court and certainly he will not be deliberately negligent or will have F.A.O. 280 OF 2009 -:5:- gross mis-conduct in prosecuting the matter. Principles of law always mandate a fair hearing before disposal of the matter. Therefore in the interest of justice coupled with the fact that there is no gross negligence or grave misconduct on the part of the decree holder I am inclined to grant an opportunity to the decree holder by restoring the execution petition. Therefore the order under challenge is set aside and the executing Court is directed to restore the E.P. back to file and dispose of the matter and both the parties are directed to co-operate with the Court to the maximum extent especially by avoiding unnecessary technical grounds and thereafter the matter be disposed of in accordance with law. Thus the FAO is allowed. M.N. KRISHNAN, JUDGE. ul/-