ORDER P.C. Pathak, J.
1. This revision is filed by the decree-holders against the order dated 19-8-1982, passed by the Addl. Judge to the Court of District Judge, Chhatarpur, in Misc. Civil Appeal No. 8 of 1981, arising out of Misc. Judicial Case No. 32 of 1980 of the Court of Civil Judge, Class I, Chhatarpur, dated 7-5-1981.
2. In Civil Suit No. 34-B of 1965, the decree-holders obtained a decree against the judgment-debtors/non-applicants Nos. 1 to 3 on 15-12-1966 for a sum of Rs. 5,180/- as principal, Rs. 685/- as interest and future interest @ rupee 0.25% per month on the principal amount till the date of realisation. The suit against the non-applicant No. 4 was dismissed.
3. The decree-holders filed an application for execution of the said decree on 30-6-1977, After the judgment-debtors had entered appearance, the Executing Court ordered to issue a warrant of attachment of moveables, on furnishing a list of moveable property and payment of process-fee within three days of the order. The decree-holders complied with the direction on 22-1-1978 and the Executing Court issued a warrant to attach the moveables as per the list. Before the attachment could be effected, non-applicant No. 4 Virendra Kumar submitted an objection on 29-1-1979 that the suit against him having been dismissed his property could not be attached. The Executing Court, by its order dated 29-1-1979, upheld the objection and directed the decree-holders to furnish a fresh list of moveables and to issue a warrant of attachment of such moveables thereafter. The order-sheets dated 21-3-1979, 10-5-1979, 30-6-1979 and 21-7-1979 show that the decree-holders failed to submit any list of moveables for attachment. Therefore, no warrant of attachment could be issued. On the last date, the Executing Court granted further time to the decree-holders to furnish a list of property within 3 days and on such a list being furnished, warrant of attachment was to be issued. The case was adjourned to 21-8-1979 awaiting the execution of the warrant.
4. On 21-8-1979, neither the decree-holders nor their counsel appeared in the Court when the case was called out. The execution application was, therefore, dismissed on 21-8-1979 in default of appearance of the decree-holders.
5. On 24-9-1979, the decree-holders submitted an application under Order XXI, Rule 106, Code of Civil Procedure, for restoration of the execution case on the ground that they could not attend the Court due to their illness on 21-8-1979. Explaining the delay in making the application, the decree-holders pointed out that on 21-9-1979 to 23-9-1979 the Court was closed. The application was supported by an affidavit.
6. The judgment-debtors/non-applicants Nos. 1 to 3 opposed the application. They submitted that there was no medical certificate to substantiate the illeness. They also raised an objection that the application was barred by limitation.
6A. On 6-1-1980, the decree-holders submitted another application under Section 5 of the Limitation Act for condoning delay in making the restoration application. The judgment-debtors, by their reply dated 1-4-1980, opposed this application also on various grounds.
7. The parties led their evidence. On behalf of the decree-holders/applicants, Dr. Ansari and Motilal were examined; whereas on behalf of the judgment-debtors, non-applicant Kashi Prasad alone entered the witness-box.
8. The Executing Court, by its impugned order, held that Section 5 of the Limitation Act does not apply to the applications under Order XXI of the Code of Civil Procedure. The Court, after examining the merits, held that the decree-holders failed to establish that they were prevented by sufficient cause for their non-appearance on 21-8-1979. The application was accordingly dismissed.
9. The decree-holders preferred a miscellaneous appeal which too was dismissed affirming the view of the Executing Court, Now, the decree-holders have filed this revision challenging the impugned order and praying for restoration of the execution application.
10. Prior to 1976, there was no provision in the Code setting out the conditions under which an execution application could be dismissed or restored. The Court exercised inherent powers to meet such eventualities. By Code of Civil Procedure (Amendment) Act, 1976 (104 of 1976), Rules 104 to 106 were inserted, making specific provision for dismissal or ex parte hearing of the application and also for setting aside such orders. Rule 105(2} reads as follows:
"Where on the day fixed or on any other day to which the hearing may be adjourned the applicant does not appear when the case is called on for hearing, the Court may make an order that the application be dismissed."
The language of Rule 105(2) is similar to Rule 8 of Order 9. At this stage, I may also refer to Order 9, Rule 2 of the Civil P.C. which specifically covers a situation when the plaintiff fails to pay Court-fees or postal charges necessary for issuance of summons or fails to present copies of the plaint. Rule 3 of Order 9 empowers the Court to dismiss the suit when neither party appears on the suit being called for hearing. Rule 8 of Order 9 empowers the Court to dismiss the suit for non-appearance of the plaintiff. Words common in all these rules are
"suit or case is called for hearing".
11. Rule 105(2) of Order 21 also contemplates dismissal of applications but only when the applicant does not appear when the case is called for hearing. The meaning of the word 'hearing' has been explained in many cases in relation to dismissal of suits under Order IX. In Maung Ahmin v. Maung Saung AIR 1938 Rangoon 360, while fixing the suit for evidence "of parties, the Court directed process-fee and a list of witnesses to be filed by a date mentioned in the order-sheet. The plaintiff failed to pay process-fee and also failed to file the list of witnesses. On account of these failures, the Court dismissed the suit for default. Explaining the meaning of the word 'hearing', the Court observed that it refers to hearing of the case by the Court and does not include the disposal of routine matter which is within the power of-the Court. The Court held that a date fixed solely as the last day on which a list of witnesses may be filed is not a date fixed for 'hearing'.
12. In Rambabu v. Bhagirath Prasad, 1983 Jab LJ 535 the words 'hearing of suit' were examined in the light of earlier decisions and this Court held that when a suit is merely fixed for considering an interlocutory matter, it cannot be said that the suit is fixed for hearing. In that case after framing of the issues, the Court fixed the case for submission of a list of witnesses of the parties. On that day, the plaintiff submitted a list of their witnesses and also submitted an application under Rule 10 of Order 13, a copy of which was supplied to the defendant and the case was adjourned to a date for reply and arguments on the said application. On that date neither the defendant nor his counsel appeared. Therefore, the Court proceeded ex parte and after recording ex parte evidence, fixed the case for delivery of judgment. Before delivery of judgment, the defendant made an application to set aside the ex parte proceedings inter alia submitting that since the case was not fixed for 'hearing', the Court had no jurisdiction to proceed ex parte. The Court held that before proceeding ex parte on failure of a party to appear what is necessary is that the date should have been for hearing of the suit.
13. In the present case, as stated earlier, the decree-holders filed the execution application with the prayer to recover the decretal amount by attachment of moveables of the judgment-debtors. The decree-holders filed a list of moveable property to be attached but the Court rejected this list on the ground that the property of the non-applicant No. 4 could not be attached since no decree was passed against him and directed the decree-holders to file a fresh list of moveable property of the judgment-debtors.
14. Execution of the decree by attachment of moveables is one of the modes contemplated under Rule 11 of Order 21. Rule 12 provides that when an application is made for attachment of any moveable property belonging to a judgment-debtor but 'not in his possession', the decree-holder shall annex to the application an inventory of the property to be attached, containing a reasonably accurate description of the same. In Nathmal v. Balkrishna, AIR 1941 Nag 152 and Gulab v. Onkar, AIR 1960 Madh Pra 187 this Court held that no inventory is necessary where the decree-holder seeks to attach the property in possession of the judgment-debtor. At this stage, a reference may also be made to rule 41 of order xxi which provides for examination of judgment-debtor as to his property. Where a decree is for the payment of money, the decree-holder under this rule may apply to the Court for an order that the judgment-debtor or any other officer or person be orally examined as to the property possessed by the judgment-debtor.
15. In the present case, the decree-holders had already applied for execution and paid process-fee for. issuance of a warrant of attachment. It was, therefore, for the Court to issue a warrant of attachment of such property as was in possession of the judgment-debtors. Submission of the inventory of moveable property in possession of the judgment-debtors is not necessary under the relevant rules. In case, the warrant is returned unexecuted, the decree-holders could, in their discretion, make an application for examination of the judgment-debtors under Rule 41 or could resort to any other mode to recover the decretal amount.
16. As seen above, the execution was being adjourned from time to time to file such an inventory of movables. The excerpt from order-sheet dated 27-7-1979 runs as under :
On 21-8-1979, since no one appeared on behalf of the decree-holders, the execution application was dismissed in default of appearance. There cannot be any dispute that the Court has powers to dismiss the application in default of appearance or failure to comply with any direction by the Court. But in this case, the question is whether the dismissal was under Rule 105 so as to attract Rule 106.
17. Rule 106 of Order 21 of the Civil P.C. provides that if the Court is satisfied that there was sufficient cause for non-appearance, when the application was called for 'hearing', the Court shall set aside the order. No such order shall be made unless the application is made within 30 days from the date of order. Rule 105 contemplates dismissal of the application on a date of 'hearing', while Rule 106 provides for restoration of application on making out sufficient cause for non-appearance, when the application was called for 'hearing'.
18. In my opinion, the date on which the execution application was dismissed for default of appearance of the decree-holders, namely, 21-8-1979 was not a date fixed for 'hearing' within the meaning of Rule 105. It was a date awaiting report as to execution of the warrant which was supposed to be issued on submission of a list of moveable property by the decree-holders within three days of the earlier order dated 21-7-1979. Consequently, the dismissal of execution application on 21-8-1979 was not under Rule 105(2) of Order 21 of the Civil P.C, and therefore, the provisions of rule 106 are not attracted. The dismissal of the execution application in default of appearance on 21-8-1979 is referable to inherent powers of the Court.
19. I have pointed out above that there is a specific provision for dismissal of suit for non-payment of costs etc. in Order 9, while there is no analogous provision in Order 21 of the Civil P.C. Consequently, the dismissal of execution application for non-payment of process-fee or for failure to comply with any direction of the Court, will be in exercise of inherent powers. In the present case, the dismissal was not failure of the decree-holders to pay process fee or to submit a list of property, but was in default of appearance of the decree-holders. The Courts below committed a mistake in treating the dismissal of execution application under Rule 105 so as to attract Rule 106 of Order 21 of the Code. The orders passed by the Courts below cannot be sustained.
20. Since the dismissal of the execution application on 21-8-1979 was under inherent powers, the application for its restoration will be by invoking the inherent powers of the Court and in that event, no time limit is prescribed for invoking the inherent powers of the Court.
21. After weighing all the facts and circumstances of the present case, I deem it proper to exercise inherent powers and order restoration of the execution application dismissed on 21-8-1979 on a condition of the decree-holders paying costs of Rs. 300/- to the judgment-debtors within two months from the date of this order or such further time, as may be extended by the Executing Court. After the payment of costs, the Court below shall restore the execution application and proceed to execute the decree in accordance with law. The costs of Rs. 300/- payable to the judgment-debtors shall not be added in the decree to be executed against the judgment-debtors.
22. Consequently, the revision succeeds. The impugned orders of the Courts below are hereby set aside. The execution application is restored, subject to the payment of costs of Rs. 300/- to the judgment-debtors as mentioned above. The costs of this revision as also the Courts below shall be borne by the parties as incurred.
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