C.R. No. 6706 of 2008 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH C.R. No. 6706 of 2008 Date of Decision : 6.1.2010 Food Corporation of India .......... Petitioner Versus M/s Mohinder Pal and Company & another ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Hitesh Pandit, Advocate for the petitioner. Mr. R.S. Athwal, Advocate for the respondents. **** VINOD K. SHARMA, J. (ORAL) This revision petition is directed against the order dated 19.3.2008 passed by the learned Civil Judge ( Sr. Divn.), Nawanshahr vide which application moved by the petitioner for restoration of the execution application was ordered to be dismissed for want of prosecution. The decree-holder had moved the executing Court for execution of the judgment and decree. After notice to the judgment debtor the case was fixed for 7.3.2002. The petitioner was directed to take dasti warrants for attachment of the property of the judgment debtor and he was also to deposit the process fee, attachment fee etc. However, though process fee was paid, dasti warrants of attachment were not collected, consequently, the learned executing Court dismissed the application for execution for non- prosecution. The petitioner moved an application for restoration of the C.R. No. 6706 of 2008 2 execution application, which stands dismissed by way of impugned order, which reads as under :- “Heard and perused the record. A perusal of file reveals that the execution application has been dismissed vide order dated 7.3.02 for want of its prosecution and no remedy against the impugned order has been sought by the Decree Holder / applicant from any Superior Court, whereas the instant application for restoration of the execution application is not maintainable and accordingly, without prejudice the rights of the Decree Holder / Application to seek the other remedies, if any, available as per provisions of law, the instant application is liable to fail and the same is hereby dismissed. File be consigned to Judicial Record Room, Nawanhahr.” The learned counsel for the petitioner contends that the learned Civil Judge ( Sr. Divn.) was in error in coming to the conclusion that application was not maintainable. The contention of the learned counsel for the petitioner is that the Court which has discretionary power to dismiss an application for non- prosecution, has also inherent power under Section 151 of the Code of Civil Procedure to restore the case dismissed in default or for non-prosecution. It cannot, therefore, be said that the petitioner was remediless or the Court did not have the jurisdiction to restore the execution application dismissed for non-prosecution. The learned counsel appearing on behalf of the respondent, however, supports the order by referring to the application moved, vide which in alternative the petitioner had also prayed that the application be treated to be one for review of order. C.R. No. 6706 of 2008 3 The contention of the learned counsel for the respondent is that there was no provision of review of an order dismissing an execution application for non-prosecution. In any case there is no ground made out for review of the order, as envisaged under Order 47 Rule 1 of the Code of Civil Procedure. On consideration, I find force in the contention raised by the learned counsel for the petitioner. Once an application for restoration has been moved immediately, showing good ground for recalling the order dismissing an application. The learned executing Court was not justified in dismissing the application by holding that the application was not maintainable. The learned Court had the jurisdiction under Section 151 of the Code of Civil Procedure, to pass order in the interest of justice and recall the order vide which execution application was dismissed for non-prosecution. For the reasons stated above, this revision is allowed, impugned order is set aside. The application moved by the petitioner for restoration of the execution application is allowed. The parties through their counsel are directed to appear before the learned executing Court on 22.2.2010. 6.1.2010 ( VINOD K. SHARMA ) 'sp' JUDGE