EP dismissed for default (question is posted again)

Question

EP dismissed for default (question is posted again)

I had put a question day before yesterday and 8-9 advocates replied in differently. Therefore i am confused hence putting the same question with some additions as below:

My decree in execution is dismiss for default, few days before, the order of the executing court is as below:

"Today the decree holder and his Advocate are absent. Since long the parties failed to take effective steps. Even today no one appeared for or on behalf of both the parties and no effective steps are taken to proceed with the matter. Therefore, it seems that the parties are not interested to proceed with the matter. The matter is pending since year 2012. No fruitful purpose would serve by keeping matter pending. Hence, this Darkhast stands dismissed."

If you read the above Order, it is clear that, the EP is dismissed under order 9 rule 3 (which states - none present) and not under order 21 rule 105 - sub rule 2 (which states the applicant does not appear) sub rule 3 (which states the applicant appears and opposite party does not appear).

Therefore A) in view of order 9 rule 3, DH (I.e. me herein) has to file a restoration application under order 9 rule 4, where limitation act attracts hence delay has to explain satisfactorily to Court.

Whereas B) in view of order 21 rule 105 sub rule 2 or 3 does not attract as both parties are absent, when the matter was called (please read the abovementioned Court's order carefully)

therefore C) The question of filing restoration application under order 21 rule 106 does not arise OR.........
the judgment of "Damodaran Pillai vs. South Indian Bank Ltd., (2005) 7 SCC 300" will not be applicable.

Secondly the Original EP was filed in June 2007 hence cannot file a fresh EP as already 12 years passed.

All of you are requested to read my question carefully and if you have solution to This, which will be within law frame, then please reply but make no confusion please.

Asked 7 years ago in Civil Law

Answer 1

1. i have gone through order 9 rule 3 - since none appeared when the matter was called out, the EP got dismissed

2. so you will have to file a restoration application under order 9 rule 4 read with section 151 of CPC to restore the suit to file by explaining the reasons for your non appearance on the date when suit got dismissed

3. whatever may be the rule under which the restoration application needs to be filed, one thing is clear that the suit is dismissed and you have to get it restored

4. so please file the restoration application within the limitation period

Yusuf Rampurawala

Advocate, Mumbai

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Answer 2

the Court had inherent power under Section 151, Civil Procedure Code, to restore an appliaation in execution proceedings which had been dismissed in default, notwithstanding the fact that the applicant had an alternative remedy open

2)In the case of Bholu v. Ram Lai (1921) I.L.R. 5 Lah. 66 it was held that (p. 67) " if the Court has an inherent power to pass an order of dismissal, there is absolutely no reason why it should not possess a similar power to set aside the dismissal if the ends of justice render it necessary to do so." The learned Chief Justice goes on to observe (p. 67) :

It is contended that a decree-holder, whose application for execution has been dismissed for want of prosecution, has got an alternative remedy and is entitled to make a second application for execution ; and that he should not, therefore, be allowed to invoke the inherent power of the Court to (1939) A.I.R. Lah. 223 set aside an order of dismissal. There may, however, be cases, and indeed this is one of such cases, in which a second application may be barred by limitation; and if we accept the contention, the decree-holder would in such cases have no remedy open to him. Be that as it may, we see no reason in principle for holding that the mere circumstance that an alternative remedy may be open to the decree-holder should prevent the Court from exercising its inherent jurisdiction if the circumstances of the case require its exercise.

Ajay Sethi

Advocate, Mumbai

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Answer 3

This is my response to you:

1. You will need to apply under O9 R4 because it was dismissed for default under O9 R3 of CPC;

2. This is because both the parties were not present;

3. Therefore O21 R105 and O21 R106 do not apply in this scenario;

4. Therefore apply for condonation of delay application in the restoration application;

5. The court will award certain costs to be paid and be agreeable to pay the same;

6. Once that is paid your restoration application will also be allowed;

7. Find good reasons for allowing your restoration application to be heard.

Gowaal Padavi

Advocate, Mumbai

1919 Answers

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Answer 4

hello,

you have to file a restoration application before the appropriate court and show sufficient cause. dont get confused,

regards

Rahul Mishra

Advocate, Lucknow

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Answer 5

Fresh EP is already bar by Limitation, evoked application to set aside dismissed petition.

Yogendra Singh Rajawat

Advocate, Jaipur

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Answer 6

In the scenario it is best to file an application under section 151.cpc.invoking inherent powers of.court and seeking restoration of the execution petition file a detailed application with affidavit explaing the cause and in interest of justice seeking restoration.

Shubham Jhajharia

Advocate, Ahmedabad

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EP dismissed for default (question is posted again)

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