C. R. No. 7724 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : C. R. No. 7724 of 2009 Date of Decision : April 30, 2010 Virender Singh and others .... Petitioners Vs. Attar Singh .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Rajesh Malik, Advocate for the petitioners. Mr. Jai Singh Yadav, Advocate for the respondent. * * * L. N. MITTAL, J. (Oral) : Legal representatives of original decree holder (DH) Randhir Singh have filed the instant revision petition under Article 227 of the Constitution of India. Execution petition filed by the DH was dismissed in default on 13.08.2005 because no one appeared on their behalf, although counsel for respondent-judgment debtor (JD) was present. Application for restoration of the execution petition was moved on 06.10.2005 alleging that counsel for the DH was stuck up in the Court of District Judge at Sonepat and therefore, could not appear in the Executing Court at Ganaur. Learned Executing Court i.e. learned Additional Civil Judge (Senior Division), Ganaur, vide order dated 08.11.2008, dismissed the restoration application. Appeal C. R. No. 7724 of 2009 2 preferred against the said order by the petitioners has been dismissed by learned Additional District Judge, Sonepat, vide judgment dated 16.09.2009. Feeling aggrieved, the instant revision petition has been filed. I have heard learned counsel for the parties and perused the case file. Learned counsel for the petitioners vehemently contended that petitioners' application for restoration of the execution petition has been dismissed only on technical ground. On the other hand, learned counsel for the respondent contended that restoration application was barred by limitation and Section 5 of the Limitation Act is not applicable to the restoration application and therefore, restoration application has been rightly dismissed by the courts below. I have carefully considered the rival contentions. Order 21 Rule 105(2) of the Code of Civil Procedure (in short – CPC) lays down that the execution petition shall be dismissed in default if on the date fixed, the DH does not appear. The execution petition was dismissed in default under this provision. Order 21 Rule 106 (1) CPC lays down that DH, against whom order under Rule 105 (2) has been passed i.e. whose execution petition has been dismissed in default, may file restoration application. Order 21 Rule 106 (3) CPC further provides that restoration application under Sub rule (1) shall be made within 30 days from the date of order. In the instant case, however, restoration application was admittedly made more than 30 days after the passing of the order of dismissal of execution petition in default. Section 5 of the Limitation Act provides that the said provision shall not be applicable to any application moved under any provision of Order 21 CPC. Consequently, Section 5 of the Limitation Act is not applicable to the restoration application moved by the petitioners under Order 21 Rule 106 CPC for restoration of the execution petition, which was dismissed in default and consequently, the Executing Court had no power to condone the delay in filing the restoration application. It is, C. R. No. 7724 of 2009 3 therefore, apparent that the restoration application has been rightly dismissed by the courts below. In this view of the matter, I am supported by judgment of Hon'ble Apex Court namely Damodaran Pillai and others vs. South Indian Bank Ltd. reported as 2005 AIR (SC) 3460. In that case also, execution petition was dismissed in default and restoration application was moved after expiry of limitation period. It was held that Court has no inherent power to condone the delay, whereas Section 5 of the Limitation Act is not applicable to such restoration application moved under Order 21 Rule 106(1) CPC. This judgment is fully applicable to the facts of the case in hand. No judgment to the contrary has been cited by learned counsel for the petitioners. For the reasons recorded herein above, I find no infirmity, much less illegality in the orders of the courts below, so as to warrant interference at the hands of this Court in exercise of power of superintendence under Article 227 of the Constitution of India. The revision petition is without any merit and is accordingly dismissed. April 30, 2010 ( L. N. MITTAL ) monika JUDGE