Execution proceedings dismissed without being fixed for hearing may be restored under Section 151 CPC beyond Order XXI Rule 106’s limitation.

An arbitral award dated 10 February 2012 in favour of four award-holders had fructified into a decree, pursuant to which EC No. 29 of 2013 was filed and remained pending since 2013.

Award Holder Nos. 4 and 1 died in 2015 and 2020 respectively, without their legal heirs being substituted; Award Holder No. 2 subsequently died on 28 September 2023.

On 11 July 2023, in the absence of the award-holders and their Advocate-on-Record, the execution proceeding was dismissed for default.

Award Holder No. 3 claimed that he was not informed of the dismissal, was occupied with his mother’s illness and death and, thereafter, his wife’s cancer treatment, and learnt of the dismissal only upon change of counsel on 20 January 2026.

He consequently filed the present application for restoration with an alleged delay of 907 days.

The award-debtors opposed the application on grounds of limitation under Order XXI Rule 106(3) CPC, abatement for non-substitution of legal heirs, suppression of facts, and lack of authority of the surviving award-holder.

1. Whether the dismissal of EC No. 29 of 2013 on 11 July 2023 was an order under Order XXI Rule 105(2) CPC, thereby attracting the thirty-day limitation under Order XXI Rule 106(3), or whether it was a dismissal otherwise than on a date fixed for hearing and consequently restorable under Section 151 CPC.

2. Whether the delay of 907 days in seeking restoration ought to be condoned in the exercise of the Court’s inherent jurisdiction, having regard to the circumstances pleaded by the applicant and the prejudice to the parties.

3. Whether the issues of abatement, substitution and impleadment of the legal heirs could be determined in the present restoration application.

4. Whether the dismissal order was a nullity for want of assignment by the Chief Justice, as subsequently urged by the applicant.

Order XXI Rule 105(1) CPC applies only where the Court has fixed a day for hearing an execution application; dismissal for non-appearance under Rule 105(2) presupposes that the matter was fixed for hearing. Order XXI Rule 106(1) provides the remedy for setting aside such dismissal, while Rule 106(3) prescribes a thirty-day period from the date of the order.

As held in Damodaran Pillai v. South Indian Bank Ltd., (2005) 7 SCC 300, the thirty-day period applies to dismissals under Rule 105(2), Section 5 of the Limitation Act cannot be invoked to extend that period, and inherent powers cannot be used to circumvent Order XXI.

However, where the matter was not fixed for hearing, Rules 105 and 106 do not apply and restoration may be considered under Section 151 CPC, as recognised in Khoobchand Jain, Deutsche Ranco GmbH v. Mohan Murti, Radhakrishnan v. State of Kerala, and Balvinder Singh v. IVth Additional District & Sessions Judge.

The Court also relied on the liberal, pragmatic and justice-oriented approach to delay condonation reaffirmed in Inder Singh v. State of Madhya Pradesh, 2025 SCC OnLine SC 600.

The question of jurisdictional nullity based on absence of Chief Justice assignment, relying on Garden Reach Shipbuilders & Engineers Ltd. v. GRSE Ltd. Workmens Union, 2025 SCC OnLine SC 582, was left open.

The Court examined the Daily List dated 11 July 2023 and found that EC No. 29 of 2013 was listed under the separate heading “New Chamber Applications,” not under “Hearing Matters”; immediately preceding listings were only in the Warning List.

Although the award-debtors contended that the matter had been actively heard earlier and that the Warning List constituted notice, the Court held that the contemporaneous categorisation by the Registry showed that the execution proceeding had not been fixed for hearing on the dismissal date within the meaning of Order XXI Rule 105(1).

The Court further noted that the proceeding had earlier been released by order dated 29 March 2016 for placement before the Chief Justice for assignment, and that the direction had admittedly not been complied with.

Accordingly, the dismissal was treated as one under the Court’s inherent power rather than Rule 105(2), making the thirty-day bar under Rule 106(3) inapplicable.

Nevertheless, the 907-day delay remained relevant to the discretionary exercise of Section 151. Balancing the award-holder’s right to enforce a crystallised arbitral decree against the award-debtors’ prejudice, the Court held that the delay reflected lack of diligence but not mala fide abandonment, and that monetary costs could adequately compensate the award-debtors.

GA No. 1 of 2026 was allowed, and EC No. 29 of 2013 was restored to its original file and number, subject to payment of costs of ₹25,000 to the award-debtors within four weeks.

The Court expressly left open the questions of abatement, substitution and impleadment of the deceased award-holders’ legal heirs, as well as the plea that the dismissal order was a nullity for want of Chief Justice assignment.

The restored execution petition was directed to be listed after three weeks.