• Decree order dismissal and section 9 and article 59

The suit was filed for specific performance on the basis of agreement to sale, which was decreed in my favour. As per the decree I had filed Darkhast before executing court praying that the sale deed be executed in my favour by appointing court commissioner. JD appeared in the said executing proceeding. After few months we both (DH and JD) filed our written arguments finally therefore, executing court fixed the date for order under Exhibit 1 (I.e. on darkhast, which I had filed). The said date adjourned for no of occasions but suddenly on one day the court kept the date for DiD (unfortunately on the same day neither parties nor their advocates were present. However on the next date the Executing Court dismissed the Darkhast for “None Present” as on same day also no body was present. Now after 6 months from the date of dismissal I came to know about this dismissal hence I obtained the certified copies just in last week.

You are all requested to guide me properly in view of below ( as my previous advocate has passed away).

1). What should I choose from below.

A. Challange the order on the ground of date which was fixed for order below Exhibit but without reading the Roznama, the court dismissed the Darkhast due to “none present” when the parties were called.

B. Whether to review the same order before executing court.

C. Restoration with delay Condoned application.

2). What will be the limitation period and from which date it will be calculated.

3). Which section or order is applicable in my case while dismissing the Darkhast by executing court.

4). Under what section/Order I should file the application as mentioned in above A, B, and C of col 1.

5. What is section 9 of CPC and whether Article 59 of Limitation act  is applicable to section 9 of CPC (this question is not related to darkhast).

Thanking You.
Asked 5 years ago in Civil Law

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6 Answers

you have sufficient reason for non-appearance, and immediately after such dismissal of the case, you can make an application for restoration of the case. If the court is satisfied with the reasons given by you, then the case will be restored.

Review is be filed by the aggrieved in the same court where the order or decree is passed. It is a discretionary right of the court and not statutory right.

Mohammed Mujeeb
Advocate, Hyderabad
19299 Answers
32 Consultations

4.7 on 5.0

File restoration application with application for condonation of delay

Don’t file review application

Don’t file application challenging order on grounds mentioned by you

Make application under section 151 CPC

dismissal of the execution petition is envisaged under Rule 105 of Order 21 CPC. Remedy of restoration is provided under Sub-Rule 1 of Rule 106 of Order 21. Sub-Rule 3 prescribes a period of 30 days from the date of order. The court is not clothed with any power to condone the delay thereafter; even for ‘sufficient reasons’, inasmuch as, Section 5 of the Limitation Act totally excludes the applicability of said act to Order 21 of the Code

Ajay Sethi
Advocate, Mumbai
94522 Answers
7485 Consultations

5.0 on 5.0

If application is dismissed under order 9 Rule 3

Then per the provision of OEDER 9 RULE 4 OF CPC applicant may bring fresh suit or court may restore the application

2) if both parties are absent court can dismiss application for default

3) hence did not advise you to challenge the order

Ajay Sethi
Advocate, Mumbai
94522 Answers
7485 Consultations

5.0 on 5.0

Please go in revision before the next court.

Koshal Kumar Vatsa
Advocate, Gurgaon
2283 Answers
3 Consultations

5.0 on 5.0

Since the EP was dismissed for default you can file a petition for restoration of execution proceeding. An application is required to be filed within a period of 30 days under section 106 cpc.

Even if it is construed that an application under Order 21 Rule 106, CPC is not maintainable, then it is open for the Court to exercise inherent powers under Section 151, CPC, which is properly exercised by the Executing Court. Therefore, the order of restoration of the execution proceedings does not suffer from any infirmities as such. When once the; Execution Petition is restored under Order 21 Rule 106, CPC or under Section 151, CPC as the case may be, considering the question of limitation does not arise.

T Kalaiselvan
Advocate, Vellore
84716 Answers
2172 Consultations

5.0 on 5.0

Order 21 of the Code of Civil Procedure deals with the solemn act of execution of the decrees passed by the Courts from grassroots to the top. Ultimately, after the judgment attains finality or where there is no stay

in the execution by any Appellate or Revisional Court, it is the Court of original jurisdiction which performs this sacred act of implementation of the execution. It has been often seen that in view of less number of units

prescribed for execution of the decree, the executions are not give that much time and importance as required and desired. It is only the execution, which reveals and signifies the importance of the decrees to be passed and the

pedestal of the Court and sanctity of the document. As such, the decrees are required to be executed with force, so that the Decree Holder having a document containing declaration of his rights may not feel cheated or helpless having earned no fruits of the lis got settled by him from the Court even after spending decades altogether.

Sub-rule (3) of Rule 106 provides for the period of limitation for filing such an application which reads as under:

"An application under sub-rule (1) shall be made within thirty days from the date of the order, or where, in the case of an ex-parte order, the notice was not duly served, within thirty days from the date when the applicant had knowledge of the order."

T Kalaiselvan
Advocate, Vellore
84716 Answers
2172 Consultations

5.0 on 5.0

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