• Wrongly filed whether to withdraw and file fresh

Brief of matter and lastly there are 3 question, which you are requested to reply. 

I have filed Darkhast in Civil court for execution, which was dismissed due to my non-appearance, therefore I filed Restoration Application with delay condone Application to restore the said darkhast, under impression that my darkhast is dismissed under order 21 rule 9 (3) CPC {being none were present} but later on I came to know that ORDER 9 is not applicable to execution proceeding.

I therefore thought the dismissal then should be under order 21 sub rule (2) rule 105 CPC, hence my filing to restore the darkhast has to be treated under order 21 rule 106 CPC. However I realized that i have filed both applications after 30 days, the period mentioned in order 21 rule 106 CPC, and in view of judgment of SC 2005 in Damodaran pillai, my said application will not maintainable. 

i therefore read the order sheet (Rojnama) where the date was stayes for order on EXIHIBIT 1 and not for hearing as mention in order 21 sub rule 2 of rule 105 CPC. hence it is confirmed that my dismissal of darkhast is passed under section 151 of CPC. 

Now here in Court proceeding, the application of delay is numbered and unless the said application is decided, the court neither will register my restoration application nor think on restoration application. 

Therefore I decided not to press or withdraw the delay condonation application requesting court to continue with main restoration application by registering and numbering the application of restoration

Question : 1) whether should i withdraw my delay condonation application and request court to continue with main restoration application ? 

2) Whether court will accept my submission if i withdraw the delay condonation application.?

3) OR should i withdraw both application and file a fresh application. 

please suggest from above my 3 questions.

Regards and Thanks
Asked 4 years ago in Civil Law

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12 Answers

Do not withdraw your condonation of delay application

2) if you withdraw your restoration application would not be maintainable

Ajay Sethi
Advocate, Mumbai
87893 Answers
6207 Consultations

5.0 on 5.0

withdraw both applications and seek leave of court to file a fresh restoration application

inform court that papers of above 2 applications are not yet served on respondents (i am assuming you have not served the copy of the applications on other side)

reason for seeking leave - that there is an inadvertent error in the application which you desire to correct by filing a fresh application

you can move a precipe requesting the court to list the 2 applications on board under caption of 'withdrawal'

Yusuf Rampurawala
Advocate, Mumbai
6876 Answers
79 Consultations

5.0 on 5.0

You better file fresh application after studying very well of case.

Ganesh Kadam
Advocate, Pune
12335 Answers
191 Consultations

4.9 on 5.0

Hi sir, do not withdraw any applications filed now, let the court order something on it i can assure you that it will allow your case if you had made good cause for delaying the process if you withdraw now and then it will affect your case so don't do that... however you proceed on that if court dismisses it then you can go for high court to all the application.. if lower does not listen to why to worry go to higher authority.

call me for further details.

Koushalya Pattan
Advocate, Bangalore
174 Answers

Not rated

1. No as in restoration there is delay first the delay needs to be condone then only the restoration can be heard and numbered.

2. No as there will be abatement which needs to be set aside first.

3. Sir you can withdraw both application and with liberty to file again or can seek permission from court after delay is condoned for draft amendment.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Filing fresh will not be beneficial so go with the old one.

Koshal Kumar Vatsa
Advocate, Gurgaon
2283 Answers
3 Consultations

5.0 on 5.0

If the Limitation Act is not applicable as held by the Damodaran Pillai then the court can not restore the execution proceeding beyond the period of 30 days under section 151 cpc.

So withdrawing the application filed u/s 151 will not do.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

It is necessary to peruse judgment cited by you of Kerala high court

It is better you do not withdraw your condonation of delay application

Judgment of Kerala high court is not binding in Maharashtra and has at most persuasive value

Ajay Sethi
Advocate, Mumbai
87893 Answers
6207 Consultations

5.0 on 5.0

This judgment will be helpful for your case: read the judgment thoroughly.

Cases referred :

Chidambaram Chettiar Vs. Periyasamy Chettiar, AIR 1978 Mad 370 [ 4 ]

Advocates appeared :

Shri. S. K. SHINDE, Advocate for the Applicants.

Shri. V. G. GANGAPURWALA, Advocate for Respondent No.1.

Appeal abated against Respondent No.3.

:- By this civil revision application, the applicant judgment-debtor challenges the judgment and order dated 21st September, 1999 passed by the learned Civil Judge, Senior Division, Sangamner in Misc. Application No.3 of 1994.

2. The facts lie in a narrow compass and are as stated below :

The respondent No.1 filed a suit bearing Special Civil Suit No.314 of 1977 against the present applicant in which a money decree was passed against the applicant in the sum of Rs.21,145/-. The respondent No.1 filed an execution petition bearing Special Darkhast No.35 of 1989 for execution of the money decree. It appears that the respondent No.1 did not take any steps for execution after filing of the Darkhast and, therefore, by an order dated 6th September, 1990, the learned Civil Judge, Senior Division dismissed the Darkhast by following order :

After 7-8-1990, no steps taken by the decree holder. It appears that the decree holder is not interested in prosecuting the further proceedings. The Special Darkhast stands dismissed for want of prosecution.

For a period of nearly four years thereafter, the respondent No.1 did not take any steps but in the year 1994, filed an application bearing Misc. Application No.3 of 1994 for restoration of Special Darkhast No.35 of 1989. By order dated 21st September, 1999, the said application was allowed. That order is impugned in this revision application.

3. Learned counsel for the applicant submits that when an execution petition is dismissed either in default or for not taking of steps, a fresh execution petition can be filed within the period of limitation. There is no provision in the Code of Civil Procedure for restoration of an execution which is dismissed in default or for non-prosecution. In case of a suit, which is dismissed in default, filing of a fresh suit is barred by reason of the provisions of Order 9, Rule 9 of the Code of Civil Procedure. That is the reason why a provision is made for restoration of a suit under Order 9, Rule 13 of the Code of Civil Procedure. In case of an execution petition which is dismissed in default or dismissed for non-prosecution, there is no provision for restoration like the one contained in Order 9, Rule 13 of the Code of Civil Procedure because fresh execution petition can be filed within the period of limitation for filing an execution petition which is sufficiently long i.e. 12 years. It would always be open to a decree holder to file a fresh execution petition within the period of limitation. In my view, in the absence of any express provision for restoration of an execution petition which is dismissed in default or for non-prosecution, it is not possible for a Court to restore the execution petition, which is so dismissed by resorting to section 151 of the Code of Civil Procedure. But, it would be open to the decree holder to file a fresh execution petition because filing of a fresh execution petition is not barred by any law.

4. Learned counsel for the respondent, however, refers to and relies upon a decision of Madras High Court in the case of Chidambaram Chettiar Vs. Periyasamy Chettiar (AIR 1978 Mad 370). Following two earlier judgments of the very Court it was held that when an execution petition is dismissed for statistical purposes, there being no adjudication of rights of parties on merits and there being no disposal of the contentions of the parties, the order of dismissal would not be a final order but must be deemed to be passed for statistical purposes and it would be possible to revive the said execution proceedings. With great respect, I am unable to agree. In an execution petition normally there is no question of adjudication of right. The rights are adjudicated between the parties at the trial. It is trite saying that an executing Court cannot go behind the decree. The executing Court only executes the decree and does not determine any right of the parties. The incidental questions which may arise, of course are decided but that is not usual adjudication of rights. I also fail to understand what is meant by dismissal of an execution petition for statistical purpose. Dismissal of an execution petition for default or for non-prosecution is a complete dismissal and not only for the purpose of maintenance of statistics of number of cases disposed of.

5. It is also worthwhile to note that after the execution petition was dismissed for non-prosecution on 6th September, 1990, no steps were taken for a period of four years. It is true that no period of limitation is provided for filing of a restoration application for execution petition but that is because there is no provision for restoration of an execution petition. Absence of a provision regarding limitation cannot be said to confer a right on a decree holder to file an application for restoration of an execution petition after unlimited period of time.

6. For these reasons, the civil revision application is allowed and the impugned order is set aside. In the facts and circumstances of the case, the parties shall bear and pay their own costs.

Application allowed.

Koushalya Pattan
Advocate, Bangalore
174 Answers

Not rated

Sir there will be no wrong if there is precedent of kerela high court further if the order doesn't mention under which section the EP is dismissed you can file restoration under the 151 CPC and can withdraw both and can pray for the restoration.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

1. If there is a delay in filing the main petition seeking to restore the same, then it is pertinent to file condone delay petition to condone the delay by ...days, get an order for delay in filing the main petition.

2. No, it may not be the procedure.

3. This will be a better option.

T Kalaiselvan
Advocate, Vellore
78048 Answers
1543 Consultations

5.0 on 5.0

Therefore when the EP when not fixed for hearing then the dismissal passed by EP Court is passed under section 151 of CPC and not under Order 21 /105 (2).

Have you seen the order in which the provisions would have been mentioned?

therefore such application under section 151 of cpc has to be filed within 3 years.

For setting aside the order of dismissal by the court, the limitation is just 30 days.

T Kalaiselvan
Advocate, Vellore
78048 Answers
1543 Consultations

5.0 on 5.0

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