1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO. 12 OF 2004 1 Smt. Suglabai w/o Prabhu Jaishete, Age 50 years, Occ. Household 2 Onkar s/o Prabhu Jaishete Age 23 years, Occ. Agri Both R/o. Moti Nagar,Latur District Latur ...Petitioners Versus 1 Rangrao s/o Govindrao (Since died through his L.Rs.) 1/1 Sitabai w/o Rangrao Age 60 years, 1/2 Govind s/o Rangrao Age 40 years, 1/3 Kusum w/o Shau Ghade Age 38 years 1/4 Sidram s/o Rangrao Age 28 years, 1/5 Rajkumar s/o Rangrao Age 21 years, 1/6 Sunanda d/o Rangrao Age 20 years All agriculturists R/o. Bhatkheda, Tq. and Dist. Latur 2 Ismail s/o Khajasab (died) Through his L.Rs. 2/1 Sk. Munawar s/o Ismailsab Age 60 years, 2 R/o. Bhatkheda, Tq. Latur District Latur 2/2 Dedubi w/o Husain Age 60 years, Occ. Household R/o. Sugaon, Tq. Ahmedpur District Latur 3 Chandar s/o Apparao (died) (Through L. Rs.) 3/1 Ahilyabai w/o Chandar Age 60 years, (Dismissed as per court’s order dt. 16.6.2007) 3/2 Gopal s/o Chandar Age 28 years, 3/3 Govind s/o Chandar Age 26 years, 3/4 Narayan s/o Chandar Age 24 years, 3/5 Mahadu s/o Apparao Age 60 years, 3/6 Venkat s/o Apparao Age 50 years, All agriculturists R/o. Bhatkheda, Tq. and District Latur 4 Aba s/o Ganpati Mule (Died) (Through his L.Rs.) 4/1 Manohar s/o Aba Mule, Age 45 years, (Dismissed as per court’s order dt. 16.6.2007) 4/2 Waman s/o Aba Mule, Age 40 years, 4/3 Vishvanath s/o Aba Mule, Age 46 yeas, 4/4 Sripati s/o Aba Mule, Age 38 years, 3 All agriculturists R/o. Bhatkheda, Tq. and District Latur 5 Sangramappa s/o Babanappa Jaishete, (Died through his L.Rs.) 5/1 Sidramappa s/o Sangramappa Jaishete (Died, through his L.Rs. 5/1/A Lalita w/o Sidramappa Jaishete Age 45 years, 5/1/B Rajkumar s/o Sidramappa Jaishete Age 25 years, 5/1/C Rameshwar s/o Sidramappa Jaishete Age 23 years, 5/1/D Sangameshwar s/o Sidramappa Jaishete Age 21 years All r/o. Hatte Nagar, Latur District Latur 5/2 Shankarappa s/o Sangramappa Jaishete (Died through his L.Rs.) Gangabai w/o Shankarappa Jaishete (Died through her L.Rs.) 5/2/A Vishwanath s/o Shankarappa Jaishete Age 50 years, 5/2/B Babu s/o Shankarappa Jaishete Age 38 years, 5/2/C Gangadhar s/o Shankarappa Jaishete Age 35 years, 5/2/D Maheshwar s/o Shankarappa Jaishete Age 30 years, All R/o. Gavli Galli, Latur District Latur 5/2/E Sow. Mahadevi w/o Vilasrao Age 45 years, Occ. Household 4 R/o. Barsi 5/2/F Sow. Nagamma w/o Shankar Age 38 years, Occ. Household, R/o. Tadwala, Tq. Barsi 5/2/G Sow. Pama w/o Umakant d/o Prabhu Jaishete, Age 30 years, Occ. Household R/o. Udgir 6 6/1 Shobha d/o Prabhu Age 26 years, 6/2 Chhaya d/o Prabhu Age 24 years, 6/3 Nirmalabai d/o Prabhu Age 21 years, All R/o Moti Nagar, Latur District Latur 7 Ratnabai w/o Vishwanath (Died her L.Rs.) Manmath s/o Vishwanath Age 30 years, R/o. Moti Nagar, Latur 8 Nallabai w/o Not known Age 40 years, Occ. Household, R/o. Karepur, Tq. Ahmedpur 9 Shantabai w/o Uttam Age 40 years, Occ. Household, R/o. Barsi, Dist. Solapur ...Respondents WITH CIVIL REVISION APPLICATION NO. 17 OF 2004 1 Smt. Suglabai w/o Prabhu Jaishete, Age 50 years, Occ. Household 2 Onkar s/o Prabhu Jaishete Age 23 years, Occ. Agri Both R/o. Moti Nagar,Latur 5 District Latur ...Petitioners Versus 1 Ratan s/o Maheboobsab Age 62 years, Occ. Agri. R/o. Bhatkheda, Tq. and District Latur (Abated as per court’s order dated 14.6.2007) 2 Sangramappa s/o Babanappa Jaishete, (Died through his L.Rs.) 1 Sidramappa s/o Sangramappa Jaishete (Died, through his L.Rs. A Lalita w/o Sidramappa Jaishete Age 45 years, B Rajkumar s/o Sidramappa Jaishete Age 25 years, C Rameshwar s/o Sidramappa Jaishete Age 23 years, D Sangameshwar s/o Sidramappa Jaishete Age 21 years All r/o. Hatte Nagar, Latur District Latur 3/1 Shankarappa s/o Sangramappa Jaishete (Died through his L.Rs.) A Vishwanath s/o Shankarappa Jaishete Age 50 years, B Babu s/o Shankarappa Jaishete Age 38 years, C Gangadhar s/o Shankarappa Jaishete Age 35 years, D Maheshwar s/o Shankarappa Jaishete Age 30 years, 6 E Sow. Mahadevi w/o Vilasrao Age 45 years, Occ. Household R/o. Barsi F Sow. Nagamma w/o Shankar Age 38 years, Occ. Household, R/o. Tadwala, Tq. Barsi G Sow. Pama w/o Umakant d/o Prabhu Jaishete, Age 30 years, Occ. Household R/o. Udgir 4 4/1 Shobha d/o Prabhu Age 26 years, 4/2 Chhaya d/o Prabhu Age 24 years, 4/3 Nirmalabai d/o Prabhu Age 21 years, All R/o Moti Nagar, Latur District Latur 5 Ratnabai w/o Vishwanath (Died her L.Rs.) Manmath s/o Vishwanath Age 30 years, R/o. Moti Nagar, Latur 6 Nallabai w/o Not known Age 40 years, Occ. Household, R/o. Karepur, Tq. Ahmedpur 7 Shantabai w/o Uttam Age 40 years, Occ. Household, R/o. Barsi, Dist. Solapur ...Respondents ..... Mr. R.B. Deshmukh, advocate for the petitioners Mr. C.R. Deshpande, advocate for respondents ..... CORAM: S. S. SHINDE, J. DATED: 20TH OCTOBER, 2010 7 JUDGMENT :- 1 Both these Civil Revision Applications are filed challenging the order passed by the learned Civil Judge Senior Division, Latur in Misc. Civil Application Nos. 171 and 172 of 1995 on 21.8.2003 thereby allowing the said applications and restoring the execution proceeding Nos. 79 of 1983 and 80 of 1983 respectively. 2 The petitioners herein are the original judgment debtors III and III/2 in said Misc. Civil Applications, filed by the respondent Nos. 1 to 4 herein for restoration for execution proceeding No. 79 of 1983 and 80 of 1983, as the said proceedings were dismissed in default for non prosecution by the learned C.J.S.D. Latur on 21.8.1991. 3 In the said Misc. applications, it was stated by the respondents herein that they have filed Special Civil Suit No. 58 of 1966 for specific performance of agreement of sale against the deceased Sangramappa and the said suit was decreed. They have filed execution proceedings to obtain the sale deed to be executed by the defendants at their costs on payment of balance consideration of Rs.14,850/- as per the decree. The amount is duly deposited in the Court. On death of Sangramappa, his heirs and L.Rs. Shankarappa Sidramappa, widow of deceased and son Prabhu appeared in execution proceedings. While the execution 8 proceeding were pending, Shankarappa died and his L.Rs. were brought on record. The decree holders i.e. petitioners had filed the duly stamped sale deed in Court to be executed by heirs of judgment debtors. From the record of Darkhast proceeding it is apparent that judgment debtors Sidaramappa and heirs of Prabhu and Suglabai have also withdrawn their share out of consideration amount deposited in Court and in token of their acceptance of sale deed they have put their signatures, thumb marks on the sale deed. The sale deed was to be duly registered at the costs of defendants. Judgments debtors after all have executed the sale deed as per law and decree. 4 One of the L.Rs. Shankarapa and his heirs did not co-operate in the matter and they delayed the matter on one pretext or the other. The court below had also passed order for execution of the sale deed by Superintendent of the court. Indeed, there was no liability caste upon decree holders except depositing the balance consideration within specified date, which the decree holders/plaintiff has duly fulfilled. The decree holder insisted for balance consideration and for after execution of sale deed by judgment debtors. The sale deed duly stamped was on record. It seems that no further action was taken by Superintendent to complete the formalities for registration of sale deed. The judgment debtors were to pay the costs of registration stamp etc. as per decree and it seems that execution proceeding was disposed of for non prosecution on 21.8.1991 by the lower court 9 without the knowledge of the decree holder. The disposal of the execution proceeding came to the knowledge of the decree holder on 15.11.1995 when they wanted to obtain copy of sale deed. 5 It was the case of the respondents herein who are original decree holders that all necessary steps have been taken by them to complete the sale deed but due to death of judgment debtors, one after another, during pendency of the case, execution proceeding were prolonged. The decree holders were ready to deposit the charges of registration. But no notice or estimated costs was issued or served on decree holder. Majority of the judgment debtors have taken their share out of consideration deposited in the court without completing the execution and registration of the sale deed. Disposal of the case is unjust and not warranted by law and facts of the case. No final order on merits is passed in the case. Disposal of case in default needs to be set aside under section 151 of C.P.C., in the interest of justice. 6 The Misc applications filed by the respondents herein came to be allowed on 21.8.2003. The Joint C.J.S.D. Latur allowed the applications and Special Darkhast Nos. 79 of 1983 and 80 of 1983, dismissed on 21.8.1991 came to be restored in their original file. Aggrieved by the said orders, these Civil Revision Applications are filed by the petitioners herein. 10 7 It is stated in the Revision Applications that the respondent Nos. 1 to 4 were expected to take necessary steps for appearance of the judgment debtors, as ordered by the court on 7.1.1984. The learned C.J.S.D. Latur passed an order on 2.4.1988 directing the Superintendent to execute the sale deed after verifying whether the decree holder has deposited required amount of registration of sale deed on or before 30.4.1988 as per the convenience of the parties. It is further case of the petitioners that inspite of this order, the original decree holders did not deposit the amount required for registration of sale deed and therefore, the learned C.J.S.D. Latur on 21.8.1991 was pleased to dismiss the execution proceeding for want of prosecution. It is further case of the petitioners that even after dismissal of the execution petition respondent Nos. 1 to 4 did not take any steps for filing fresh execution proceeding within prescribed period of limitation, which they were entitled for. 8 It is further case of the petitioners that after a period of about six years i.e in the year 1995, the respondent Nos. 1 to 4 original decree holders filed Misc. Civil application Nos. 171 of 1995 and 172 of 1995 respectively for restoration. The respondent Nos. 1 to 4 were negligent even after filing of the said restoration applications, inasmuch as the applications were dismissed against many of the judgment debtors for not taking steps by the respondent Nos. 1 to 4. 11 9 Learned counsel appearing for the petitioners relying on the grounds taken in the civil revision applications would urge that though the applications were filed after a period of four years, no application for condonation of delay was filed by the respondent Nos. 1 to 4. The trial court allowed the application of respondent Nos. 1 and 4 and restored the execution proceedings. It is further submitted that there is no explanation in the application or reasons given in the applications that the respondent No. 1 to 4 were prevented from appearing in the court for taking steps on the date on which the order of dismissal came to be passed. The trial court did not follow the settled law that when the order is passed under Order IX Rule 5 of C.P.C. dismissing the proceeding for not taking steps, provisions of Order IX Rule 5 are not attracted and cannot be invoked the only remedy available to the person against whom order is passed to file a fresh proceeding subject to period of limitation, as such restoring the execution petition which is dismissed for default is illegal. It is further submitted that the order impugned is passed under Section 151 of C.P.C. But at the same time the court has failed to appreciate the law conferring the powers under Section 6, execution are not to be invoked in such manner that too when there is a settled procedure laid down by law. According to the counsel for the petitioners, restoration applications came to be dismissed on the date fixed for hearing of the matters. It is further submitted that while allowing the applications filed by the respondents, the learned Judge has not assigned any reasons while reviving the 12 execution proceedings. According to the counsel for the petitioners, the perverse finding is recorded by the court below while allowing the application for restoration of execution proceeding. Learned counsel further invited my attention to order 21 Rule 105 and 106 of C.P.C. and submitted that the respondents herein ought to have filed applications under Rule 105 of Order 21 and under Rule 106 limitation is provided to file such application. The applications should have been filed within 30 days from the date of dismissal of the execution proceedings. In support of his contention, learned counsel heavily placed reliance on the reported judgment of the Hon’ble Supreme court in the case of Damodaran Pillai and others. Vs. Sough Indian Bank Limited, reported in 2005 AIR SCW 4603 and submitted that inherent of power of the court cannot be invoked to restore the execution proceeding. Since there is specific provision provided under Order 21 Rule 105 and 106 of C.P.C. The trial court was not justified in passing the order under Section 151 of C.P.C. to restore/revive the execution proceeding. Learned counsel further placed reliance on the judgment in the case of Dattatraya Raghunath Jog Vs. Radhabai Laxmanrao Ghate, reported in 2007(6) LJSOFT 149 and submitted that for restoration of execution proceeding, an application is required to be filed within a period of 30 days. Learned counsel further submitted that in the case of Mhatarba Laxman Dongare (Dead through L.Rs.) Vs. Central Bank of India and others, reported in 2005 (7) LJSOFT 124, this Court has held that in absence of any express provision for 13 restoration of an execution petition which is dismissed in default or for non prosecution, it is not possible for the Court to restore the execution petition, which is so dismissed by resorting to Section 151 of the Code of Civil Procedure. Learned counsel for the petitioner also placed reliance on the reported judgment of the Hon’ble Supreme court in the case of Shipping Corporation of India Ltd. Vs. Machado Brothers and others, reported in AIR 2004 SC 2093 and submitted that the Revision against the order of restoration of execution petition under Section 151 of C.P.C. is maintainable. Learned counsel also invited my attention to the grounds taken in the civil Revision Applications and other documents and submitted that these Civil Revision Applications deserve to be allowed. 10 On the other hand, learned counsel appearing for the respondents submitted that the orders impugned in these revision applications are passed under Section 151 of C.P.C. and it cannot be said that the Court, who has passed the order, has no jurisdiction to pass such orders. It is further submitted that the concerned court in order to do the justice to the parties in the matter, has passed the order and restored the proceedings and directed to rehear the same and thereby there is no prejudice caused to the petitioners since execution proceedings were dismissed for want of prosecution. Learned counsel submitted that if the execution proceedings are dismissed for want of prosecution, it cannot be said that the said date 14 was fixed for hearing of the matters. According to the counsel the provisions of order 21 Rule 105 and 106 of C.P.C. will come into picture when the matter is set down for hearing. Learned counsel invited my attention to the provisions of Rule 105 and 106 and has submitted that in the instant case the date which was fixed in the execution proceeding was the date fixed for taking steps and since the steps were remained to be taken, the execution proceedings were dismissed for want of prosecution. Therefore, according to the learned counsel for the respondents, the order of dismissal of execution proceedings was under Section 151 of C.P.C. and the said Court while reviving/restoring the execution proceeding has also resorted to provisions of Section 151 of C.P.C. and therefore, there is no question of any delay in restoring the order because the court was exercising its inherent powers. Learned counsel further invited my attention to the original record and contended that the date on which the matter was shown on the board was for taking some steps and was not fixed for hearing. Learned counsel, in support of his contentions placed reliance on the various judicial pronouncements in the cases of Keshardeo Chamria Vs. Radha Kissen Chamria and others, reported in AIR 1953 SC 23, Manindra Land and Building Corporation Ltd. Vs. Bhutnath Banerjee and others, reported in AIR 1964 SC 1336, M/s. Devi Dayal Textile Company and Ors. Vs. Nand Lal, reported in AIR 1977 Delhi 7, K. Balasubramania hetty Vs. N.M. Sambandamoorthy Chetty, reported in AIR 1975 SC 818, Surajdeo Vs. Board of Revenue, U.P. Allahabad 15 and others, reported in AIR 1982 Allahabad 23 and also in the case of Dambarudhar Mohanta Vs. Mangulu Charan Naik and others reported in AIR 2004 Orissa 126, Khoobchand Jain and Anr. Vs. Kashi Prasadand others, reported in AIR 1986 M.P. 66, Gour Nag Bhusan Vs. Ananta Sendh and Ors., reported in AIR 1958 Ori. 200, Nemi Chand and Ors. Vs. Umed Mal, reported in AIR 1962 Raj. 107, Devineni Durgamba Vs. Raj Kumar Financiers, reported in 1997(1) A.L.T. 448 and Smt. Padmavati Devi Vs. Jaipur Development Authority, Jaipur, reported in 1997 (3) C.C.C. 367 (Raj.) Learned counsel submitted that the judgment cited by the counsel for the petitioners in the case of Damodaran Pillai and others (supra) is not applicable in the facts of this case. In the said case, the matter was set down for hearing. In the said case as it appears from the facts of the said case that the execution proceeding had been set down for hearing. Learned counsel invited my attention to para 19 of the said judgment and submitted that when the execution application was dismissed on a day which was not fixed for hearing, the order of dismissal was not under sub Rule 2 of Rule 105 of Order 21 of C.P.C. and therefore, there was no question of taking recourse of said provisions, while filing application for restoration. Learned counsel further submitted that the judgment relied upon by the counsel for the petitioners in the case of Dattatraya Raghunath Jog (supra) has no relevance in the facts of the case since in that case it appears 16 from the facts that the execution proceeding was fixed for hearing and therefore, the court held that the application for restoration of execution proceeding is required to be filed within 30 days. Learned counsel further submitted that in the case of Mhatarba Laxman Dongare (Dead Through L.Rs.) (supra), the observations of this court runs contrary to the various judgments of the Hon’ble Supreme Court and therefore, the said judgment cannot be relied upon in the light of various pronouncements of the Hon’ble Supreme Court. The sum and substance of the arguments advanced by the counsel for the respondents is that if the court exercises inherent powers vested in it, it cannot be said that there is jurisdictional error or there was no jurisdiction to pass such order. Therefore, he would submit that these Civil Revision Applications deserve to be dismissed. 11 I have given due consideration to the submissions of the learned counsel for the petitioners and respondents. I have also perused the original record and also Civil Revision Applications and annexures thereto. I have also gone through the judgment cited by the learned counsel for the parties. At the outset, it is necessary to reproduce the order passed by the executing Court while dismissing the execution proceedings. It appears from the original record that on 21.8.1991 the matter was fixed for compliance/taking some steps, the order reads thus:- 17 “ No steps Dismissed for want of prosecution. No costs.” Therefore, from perusal of the order it would show that the matter was not fixed for hearing and it was fixed for taking some steps. Since no steps were taken the court dismissed the execution proceedings for want of prosecution. Therefore, the contention of the counsel for the petitioners that the matter was fixed for hearing is required to be rejected. Having said so, there is no question of invoking the provisions of Order 21 Rule 105 and Rule 106 of C.P.C. In the instant case. Rule 105 contemplates the situation when the application is fixed for hearing. Rule 105 and 106 of Order 21 read thus:- ORDER XXI EXECUTION OF DECREES AND ORDERS “Rule 1 to 104 - ----- 105. Hearing of application.- (1) The Court, before which an application under any of the foregoing rules of this Order is pending, may fix a day for the hearing of the application. (2) Where on the day fixed or on any other day to which the hearing may be adjourned the applicant does not 18 appear when the case is called on for hearing, the Court may make an order that the application be dismissed. (3) Where the applicant appears and the opposite party to whom the notice has been issued by the court does not appear, the Court may hear the application ex parte and pass such order as it thinks fit. 106. Setting aside orders passed ex parte, etc..- (1) The applicant, against whom an order is made under sub-rule (2) of rule 105 or the opposite party against whom an order is passed ex parte under sub-rule (3) of that rule or under sub-rule (1) of rule 23, 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 whom the application was called on for hearing, the court shall set aside the order or such terms as to costs, or otherwise as it thinks fit, and shall appoint a day for the further hearing of the application. (2) No order shall be made on an application under sub-rule (1) unless notice of the application has been served on the other party. On perusal of above Rules, it reveals that Rule 105 contemplates hearing of application. Limitation prescribed under Rule 106 would be relevant if order is made under sub Rule 2 of Rule 105 of Order 21 of C.P.C.. Therefore, in the facts of this case, there is no question of invoking the power under Order XXI Rule 105 and 106 of 19 C.P.C. This view is fortified by the decision in the case of Dambarudhar Mohanta (supra). In para 6 of the said judgment, the High Court held that if the execution proceedings are dismissed in default, it cannot be restored by filing an application under Order 21, Rule 106 of C.P.C. and provision in Section 151 is the only provision to consider such prayer. Yet in another case of Khoobchand Jain and another (supra), the Madhya Pradesh High court held that dismissal of execution application for default of appearance of decree holders cannot be treated under rule 105 of Order 21 of C.P.C. so as to attract Rule 106 but it should be under inherent powers. Application for its restoration also would be by invoking inherent powers of court where no time limit is prescribed. (emphasis supplied). The Madhya Pradesh High Court further held that the date on which the execution application was dismissed for default of appearance of the decree holders, was not a date fixed for ‘hearing’ within the meaning of Rule 105. Yet in another case, in the case of Gour Nag Bhusan (supra), Orissa High court relying on the view expressed by Allahabad High Court in the case of Mst. Ram Dulari Vs. B. Udai Bhan Pratap Singh, AIR 1954 ALL 98 (G), held that in an appropriate case e.g. where the Court, in ignorance of the fact that notice of the