Section 151 CPC may restore execution proceedings closed outside an Order XXI Rule 105 hearing.

The petitioner-bank, as decree-holder, initiated Execution Petition No. 150/2003 to recover ₹41,11,371 with interest. After the matter was posted for taking steps against the judgment-debtors, the execution petition was closed in the decree-holder’s absence.

In 2014, the bank filed an application under Section 151 CPC, accompanied by an application under Section 5 of the Limitation Act, seeking restoration and condonation of delay. The Executing Court rejected the applications, relying on Damodaran Pillai v. South Indian Bank Ltd., (2005) 7 SCC 300. The bank challenged that order by writ petition.

1. Whether the 30-day limitation under Order XXI Rule 106 CPC applied to an order closing the execution petition when it had been posted for taking steps, rather than fixed for hearing.

2. Whether the Executing Court erred in rejecting the restoration application without considering that Section 151 CPC may be invoked where the execution proceeding was closed at a stage outside Order XXI Rules 105 and 106 CPC.

Order XXI Rule 105(2) CPC permits dismissal where an applicant fails to appear when an application is called for hearing; Rule 106(1) allows an application to set aside such an order, and Rule 106(3) requires that application to be made within 30 days, subject to the stated exception for lack of due service.

Where an execution proceeding is closed or dismissed at a stage outside Rules 105 and 106, Section 151 CPC may be invoked.

The Court considered Damodaran Pillai and its reference to Khoobchand Jain v. Kashi Prasad, AIR 1986 MP 66, concerning dismissal of an execution application on a day not fixed for hearing.

The order sheet showed that, when the execution petition was closed, it had been posted for taking steps against the judgment-debtors—not for hearing. The Court therefore held that the closure was not an order under Rule 105(2), and the 30-day limitation in Rule 106 did not govern the bank’s restoration application.

Although the Executing Court had discussed Damodaran Pillai, it failed to account for the distinction between dismissal on a hearing date and closure at another stage; Section 151 CPC was therefore available for the bank’s application.

The High Court expressly left the reasons for delay to be assessed independently on remand.

It remitted the applications to the Executing Court for reconsideration in accordance with law, without expressing any opinion on the sufficiency of the reasons for delay; the parties may raise any legally available contentions.