A judgment debtor cannot obtain recall after failing to appear despite notice and newspaper publication.

The decree-holders had instituted Execution Case No. 5 of 1994 to execute a decree passed in Title Suit No. 28 of 1984 against the petitioner’s deceased father.

The execution case was dismissed for default on 8 December 2023, after which the decree-holders filed Restoration Case No. 1 of 2024.

The petitioner sought recall of the order dated 10 December 2024 fixing the restoration proceeding ex parte, asserting that he had not received notice.

The Civil Judge rejected that application on 8 April 2026.

The petitioner challenged the rejection under Article 227 of the Constitution

1. Whether the Civil Judge erred in rejecting the petitioner’s application to recall the order fixing the restoration proceeding ex parte, in light of his claim that he had not received notice

2. Whether the impugned order warranted interference under Article 227 of the Constitution

The Court considered Article 227 of the Constitution and the provisions of Order IX CPC.

It stated that, where a suit is dismissed under Order IX Rule 4 CPC, the plaintiff may pursue either or both remedies of bringing a fresh suit and applying for restoration; choosing one does not bar the other.

The Court referred to Govind Prasad v. Har Kishan (Weir, J.), AIR 1929 Allahabad, in support of that proposition

The Court found that summons had been issued to the petitioner and that publication had also been made in Prabhat Khabar on 12 September 2024.

Despite those steps, the petitioner had not appeared in the restoration proceeding.

On that basis, the Court rejected his contention that the ex parte order should be recalled for want of notice and agreed with the Civil Judge that the recall application had been filed belatedly.

It therefore found no ground to interfere under Article 227

It left it open to the petitioner to appear in the pending execution case and present his case