• Darkhast dismissal - last chance to restore

Decree holder and judgment debtor both were absent on the fix date, both Advocates also were absent. Therefore following order is passed by Executing Court.
“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 for long time. No fruitful purpose would serve by keeping matter pending. Hence, this darkhast stands dismissed”.
I have filed a restoration application with an application for delay condonation, under 'ORDER 9 RULE 4 of CPC', assuming that, the said dismissal is happened under ORDER RULE 3 of CPC (where neither party appears, suit to be dismisses). The matter is listed for hearing in next month.

Note: I can not file a darkhast fresh as already 12 years are over. 

My questions on above.

1. Whether such dismissal is happened under…...
A. Order 9 rule 3 of CPC.
B. Order 21 rule 105 sub rule 2 of 1 of CPC.
C. Inherent power under section 151 of CPC.

2. Whether my application of restoration is correctly filed under ORDER 9 Rule 4 of CPC.

3. Whether i will be succeed if I challenge the order of executing court on the ground that the executing court has no power to dismiss the darkhast under Order 21 Rule 5 sub rule 2 of 1, being no provision is stated for “None Present” under Order 21 Rule 105.

You are requested to advice me in view of this is my last chance to win. If the darkhast is not restored then I will be deprived away from the benefits for which I have wasted my last 35 years.

Please provide citations in this regards.

Thank you in advance.
Asked 1 year ago in Civil Law from Thane, Maharashtra

1. The dismissal is apparently made under or 21 rule 2 of cpc.

2. However even if you have filed the restoration petition under or 9 rule 4 cpc which is not applicable here. the technicality can be corrected and the court may treat your application to be filed under 21 rule 106 of cpc.

3. There is no point in challenging his order as the same would be devoid of merit. rather apply the court to treat your present restoration petition as petition under or 21 r 106 of cpc. This is permissible as the nomenclature does not define the petition but the prayer sought for makes it.

Devajyoti Barman
Advocate, Kolkata
18104 Answers
260 Consultations

5.0 on 5.0

Dismissal has been done under provisions of order 9 rule 3

2) your application for restoration is correctly filed

3) 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

4) you should succeed in setting aside order of dismissal

Ajay Sethi
Advocate, Mumbai
68821 Answers
4143 Consultations

5.0 on 5.0

You should show the sufficient cause which prevented you from not taking the steps for the same. If the same is appreciated by Court then you can get a second chance. It can be restored but opposite party will have full opportunity to oppose your restoration application

Prashant Nayak
Advocate, Mumbai
14372 Answers
24 Consultations

4.6 on 5.0

Your application under ORDER 9 RULE4 OF CPC is rightly filed before the court,as the darkhast was dismissed for default as the parties were absent before the date. As per the provision of OEDER 9 RULE 4 OF CPC applicant may bring fresh suit or court may restore the application. In your case ,you will not file fresh application for execution as it is beyond the period of 12 years.

UNDER ORDER 21 RULE 105 CPC, provides that an application is pending before the court under any foregoing rules and the court may fix the date for the hearing of the application and the applicant does not appear, it enables the court to pass appropriate orders for dismissal of such an application under O.21 R.105(2) CPC. But in your case the court has not filed any fix date for hearing of the application. Court has dismissed the application only because the parties were absent before the court and effective steps is taken by the party. Therefore your application under ORDER 9 RULE 4 OF CPC is maintainable under the law. A Revision can lie against the order passed under O.9 R.4 of CPC. If the order is passed under O.21 R.105 then an appeal can lie under O.43 R.1 CPC.

Girish Togani
Advocate, Bhiwandi
8 Answers

5.0 on 5.0

Dear Client,

Order 9 governs the suit whereas execution deals under Order 21.

Dismissed for default acted by court u/o 21 R 1&2, Set aside will under rule 106 CPC.

All orders passed r/w sec 151.

No, filed under wrong provision.

No success, court rightly dismissed by given reasoned order.

Yogendra Singh Rajawat
Advocate, Jaipur
14442 Answers
19 Consultations

4.6 on 5.0

The answer to your question's part Ist is C. The power of recalling its order invest with the court and there is no question if your grounds for restoration are found satisfactory.

Koshal Kumar Vatsa
Advocate, Gurgaon
1808 Answers
1 Consultation

5.0 on 5.0

Ask a Lawyer

Get legal answers from top-rated lawyers in 1 hour. It's quick, easy, and anonymous!
  Ask a lawyer