Jharkhand High Court
Beni Oraon vs Laxman Oraon @ Lachhmi Bhagat on 30 March, 2026
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
( 2026:JHHC:8841 )
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 2548 of 2012
1. Beni Oraon, son of late Dukhwa Oraon
2. (i) Sushil Oraon (substituted V.O.D 28.01.25)
(ii) Dukha Oraon
(iii) Rabinath Oraon
(i) To (iii) all son of late Gandu Oraon son of late Dukhwa Oraon
2(ii) (a) Sima Orain, aged about 44 years, wife of late Dukha Oraon
2(ii) (b) Sachin Oraon, aged about 16 years, Minor son of late Dukha
Oraon
Petitioner No 2 (ii)(b) is being minor represented through their natural
guardian (mother) Sima Orain (Petitioner no. 2 (ii) (a)
Both residents of village Kokar, Patra Toli, Post Office Henjila, Police
Station-Kuru, District-Lohardaga
...............Petitioners
Versus
1. Laxman Oraon @ Lachhmi Bhagat, son of late Shankar Oraon
2. Tejuwa Oraon, son of late Dahru Oraon
3. Bhairo Oraon, son of late Dahru Oraon
4. Khudi Oraon, son of late Ranthu Oraon
5. Ram Oraon son of late Somra Oraon
6. (a) Virendra Bhagat (substituted V.O.D. 28.1.2025)
(b) Vishwa Bhagat
(c) Bindeshwar Bhagat
All son of late Budu Oraon , resident of village Narauli, P.O. Narauli, P.S.
Kairo, District-Lohardaga.
6.(a) (I)Birasmuru Bhagat wife of late Virendra Bhagat
6(a) II Anupam Ritik Raushan Bhagat son of late Virendra Bhagat
Both residents of village Narauli, P.O. Narauli, P.S. Kairo, District-
Lohardaga
7. Deputy Commissioner, Lohardaga
...... ... Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
For the Petitioners :Mr. Jai Prakash, Sr. Advocate
Ms. Ruchi Mukti, Advocate
For the Resp. No. 5 : Mr. Kundan Kumar Ambastha, Advocate
:Md. Abdul Wahab, Advocate
31/ 30.03.2026: Heard Mr. Jai Prakash, learned senior counsel for the
petitioners and Mr. Kundan Kumar Ambastha, learned counsel for the
respondent no. 5.
2. This petition has been filed under Article 226 of the Constitution
of India for quashing the order dated 20.03.2012 passed by the learned
Munsif, Lohardaga in Misc Case No. 01 of 2005 dismissing the petition filed
on behalf of the petitioners under Order XXI Rule 106 read with section 151
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of the Civil Procedure Code and petition under section 5 of Limitation Act
read with section 151 of Civil Procedure Code.
3. Mr. Jai Prakash, learned senior counsel for the petitioners
submits that the father of the petitioners filed Title Suit No.6 of 1978 for the
land situated at village Kokar, P.S. Kuru, Thana No. 66, District Lohardaga
appertaining to Khata No. 87, Plot Nos. 32, 73, 97, 98, 626, 627, 976, 1001,
1201 area 3.98 acres khata no. 87, in the court of learned Munsif, Lohardaga
for declaration of title and recovery of possession of the suit land and the
said suit was dismissed by the learned Munsif on 12/10/1982 against which
Late father of the petitioners preferred Title Appeal No. 91 of 1982 before the
court of learned IVth Additional Judicial Commissioner, Ranchi as the court of
learned Munsif, Lohardaga was within the judgeship of Ranchi at that time.
He further submits that the said appeal was allowed by judgment dated
05/05/1988. He also submits that the defendants-respondent no.5 preferred
Second Appeal No. 119 of 1988(R) which was also dismissed in limine vide
order dated 28/11/1989. The learned senior counsel for the petitioners
further submits that the father of the petitioners filed Execution Case No. 2
of 1988 in the court of learned Munsif, Lohardaga for execution of the decree
passed in his favor. The execution case was filed on 09/06/1988 and Stamp
Reporter reported that certified copy of decree of Original Suit has not been
filed and the learned Munsif vide order dated 10/08/1988 granted time till
05/09/1988 to the decree holder for filing certified copy of decree. He
submits that subsequently, it was brought to the notice of learned Munsif
that the decree in question had already been filed and accordingly the
learned Munsif sought for further stamp report vide orders dated 05/09/1988
and 07/09/1988. He further submits that Stamp Reporter made the report on
16/09/1988, but prior to that the judgment debtors informed the learned
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court that the Hon’ble High Court has stayed further proceedings of the
execution case as recorded in order dated 07/09/1988 and thereafter the
execution proceeding was stayed and the execution case was adjourned from
time to time awaiting further orders from the Hon’ble High Court. He next
submits that the application filed by the judgment debtors before the Hon’ble
High Court was dismissed vide order dated 05/10/1990 against which they
moved before the Hon’ble Supreme Court and brought status quo order and
the execution proceedings again remained stayed and it was being adjourned
from one date to another awaiting further orders from the Hon’ble Supreme
Court till 17/11/1996. He also submits that the Hon’ble Supreme vide order
dated 02/09/1996 vacated the stay order which was received by learned
Munsif on 18/11/1996 and the learned Munsif adjourned the case to
10/12/1996, 02/01/1997, 31/01/1997, 17/02/1997 and 29/02/1997 for
further step by the decree holder and finally on 26/02/1997 the execution
case was dismissed on the ground that no step was taken by the decree
holder. He submits that the said Execution Case No. 2 of 1988 was pending
in view of stay order passed by the High Court and Hon’ble Supreme Court
from 07.09.1988 to 18.11.1996. He draws the attention of the Court to Rule
105 of Order 21 of the Civil Procedure Code and submits that in the light of
sub-section 1 of Rule 105 of the Code of Civil Procedure, the Court is
required to fix a date for hearing on the application and on the date fixed
the applicant does not appear, the Court may dismiss the application and
such dismissal can be set aside under Rule 106 provided the application is
made within 30 days from the order of dismissal. He further submits that the
said execution case was not fixed for hearing and it was only fixed for taking
step and for not taking step the said execution case was dismissed and in
view of that the execution case was not fixed for hearing and in the light of
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that on the strength of section 151 of C.P.C. the application has been filed for
restoration of said execution case. He submits that the said execution case
was not fixed for hearing the remedy before the petitioner was only Section
151 of C.P.C and in the light of aforesaid fact the learned court without
appreciating this aspect of the matter has passed order relying on Rule 106
of C.P.C which is not correct proposition and to buttress this aspect of the
matter Mr. Jaiprakash, learned Senior counsel relied in the case of
“Damodaran Pillai and others” vs. South Indian Bank Limited“,
reported in (2005) 7 SCC. He refers to paras 8, 9 and 19 of the said
judgment which is quoted here-in-below:-
“8. It is not in dispute that the execution petition was
dismissed in terms of the provisions of Rule 105 of Order 21 of the
Code of Civil Procedure. Sub-rule (1) of the said Rule provides for
fixing a day for hearing of the application; whereas sub-rule (2)
thereof envisages that if on the day so 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. Sub-rule (3) of the said Rule
postulates hearing of an application ex parte in a case where the
applicant appears and the opposite party to whom the notice has
been issued by the court does not. Sub-rule (1) of Rule 106 of Order
21 of the Civil Procedure Code provides for restoration of the
application for default or setting aside of the order passed under sub-
rules (2) and (3) of Rule 105 of Order 21 in the following terms:
“106. (1) The applicant, against whom an order is made under
sub-rule (2) of Rule 105 or the opposite party against whom an order
is passed ex parte under sub-rule (3) of that rule or under sub-rule
(1) of Rule 23, may apply to the Court to set aside the order, and if he
satisfies the Court that there was sufficient cause for his non-
appearance when the application was called on for hearing, the Court
shall set aside the order on such terms as to costs or otherwise as it
thinks fit, and shall appoint a day for the further hearing of the
application.”
9. Sub-rule (3) of Rule 106 provides for the period of limitation for
filing such an application which reads as under:
“106. (3) An application under sub-rule (1) shall be made
within thirty days from the date of the order, or where, in the case of
an ex parte order, the notice was not duly served, within thirty days
from the date when the applicant had knowledge of the order.”
19. Mr Joshi, however, placed strong reliance upon Khoobchand Jain
v. Kashi Prasad. The said decision, in our opinion, has no application
to the facts and circumstances of the present case. Therein the
execution application was dismissed on a day which was not fixed for
hearing. The said order of dismissal, therefore, was not passed in
terms of sub-rule (2) of Rule 105 of Order 21 of Code of Civil
Procedure. In that situation it was opined: (AIR p. 69, para 15)
19. Mr. Joshi, however, placed strong reliance upon Khoobchand Jain
v. Kashi Prasad. The said decision, in our opinion, has no application
to the facts and circumstances of the present case. Therein the
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execution application was dismissed on a day which was not fixed for
hearing. The said order of dismissal, therefore, was not passed in
terms of sub-rule(2) of Rule 105 of Order 21 of Code of Civil
Procedure. In that situation it was opined: (AIR p. 69, para 15)
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 movable 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.”
It was further observed: (AIR p. 70, para 20)
“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”
4. Relying on the aforesaid judgment he submits that only on the
ground of limitation the said restoration cannot be dismissed if the sufficient
cause is shown and it has been held in the aforesaid judgment of the
Hon’ble Supreme Court that once case is not fixed for hearing Rule 106 of
CPC will not apply and section 151 of C.P.C will apply. He further submits that
the father of the petitioners had died on 29.04.1993 leaving behind the
petitioners as legal heirs and representative and after death of their father
previous concerned lawyer has left the pairvi in the execution case and has
not also informed to the petitioners and the petitioners had no knowledge of
the aforesaid execution case in as much as the petitioners had no knowledge
as to which of the lawyer was representing the execution case and the
execution case was dismissed for default on 26.02.1997. He further submits
that after death of the father of the petitioners, the petitioners tried to find
out the record from District Court, Ranchi as well as from District Court,
Lohardaga and after search they came to know that the execution case has
been dismissed for default and thereafter restoration petition has been filed
on 20.01.2005. On these grounds, he submits that the impugned order may
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( 2026:JHHC:8841 )kindly be set aside and execution case may kindly be restored.
5. On the other hand, Mr. Kundan Kumar Ambastha, learned
counsel for the respondent no.5 vehemently opposes the prayer and submits
that in the light of Rule 105 of C.P.C the said execution case was dismissed
and under Rule 106 of CPC provision is made for restoration within 30 days
of the said dismissal and in view of this fact the learned court has rightly
passed the order relying on Rule 106 of the C.P.C. He further submits that
after such a long period the said restoration petition was filed and in spite of
showing that fact that within the stipulated period execution case was not
filed as such there is no illegality in the impugned order. He relied the same
judgment which has been relied by the learned senior counsel for the
petitioners in the case of “Damodaran Pillai” (supra). He also relied
para 16 of the said judgment in which it has been held that Section 5 of the
Limitation Act is not maintainable in a proceeding arising under Order 21 of
the CPC and inherent power cannot be invoked. Mr. Ambastha, also relied in
the case of ” M/s Uttam Rice Mill Vs. M/s Ashok Construction
Company” reported in (2025) Supreme (SC) 1620. Relying on the said
judgment, he submits that in that case delay was there and said execution
case was dismissed and considering the delay the Hon’ble Supreme Court has
allowed the appeal dismissing the restoration of execution case. On these
grounds, he submits that the writ petition may kindly be dismissed.
6. It is an admitted position that the decree was in favour of the
father of the petitioners. In the year, 1978 the father of the petitioners filed
Title Suit No.6 of 1978 in the court of learned Munsif, Lohardaga for
declaration of title and recovery of possession of the suit land and the said
suit was dismissed by the judgement dated 12/10/1982 against which the
father of the petitioners preferred Title Appeal No. 91 of 1982 in the court of
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( 2026:JHHC:8841 )learned IVth Additional Judicial Commissioner, Ranchi. The said appeal was
allowed by judgment dated 05/05/1988. The defendants-respondent no.5
preferred Second Appeal No. 119 of 1988(R) which was also dismissed by
order dated 28/11/1989. Thereafter the father of petitioners filed Execution
Case No. 2 of 1988 in the court of learned Munsif, Lohardaga for execution of
the decree passed in his favor. The execution case was remained pending
before the Stamp Reporter for reporting till 06/09/1988 which is apparent
from the entire order sheet which is annexed with the writ petition. On
07.09.1988 the judgment debtor has informed the executing court that the
High Court has stayed the proceeding of execution case. Further by order
dated 05.10.1990 the petition filed by the respondent no.5 before the High
Court has been dismissed. The respondent no. 5/judgment-debtor moved
before the Hon’ble Supreme Court and has brought the status qua order
dated 17/11/1996 and the Hon’ble Supreme Court vide order dated
02/09/1996 vacated the stay order which was received by learned Munsif on
18/11/1996 and thereafter the execution case was fixed for 10.12.1996 and
for further proceeding and the case was adjourned for 10/12/1996 to
26/02/1997 for taking steps and it was not fixed for hearing. On
26.02.1997 the Execution Case No. 2/1988 was dismissed for default as no
step was taken. It has been pointed out that the father of the petitioners had
died on 29.04.1993 and how they have came to know and trace out the file,
has been noted in the argument of the learned senior counsel for the
petitioners. Thereafter petitioners filed application before the Court of
learned Munsif, Lohradaga for restoration on 20.01.2005 however, the said
Misc. Case No. 01/2005 was dismissed by order dated 20.03.2012.
7. Annexure-3 is the petition which has been filed for restoration of
the said execution case. Looking into that it transpires that this petition has
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( 2026:JHHC:8841 )been filed under section 151 of C.P.C. The contention has been made by the
learned senior counsel for the petitioners that Rule 105 of C.P.C will not
attract in this case as the matter was not fixed for hearing and only to meet
out the stamp report, Order XXI Rule 106 was inserted with pen. On perusing
the said petition annexed with the writ petition, contention of learned
senior counsel appears to be correct. Typed copy of petition is under Section
151 of C.P.C
8. It has been further contended that in the light of Rule 106 of C.P.C
it is dismissed after fixing hearing then Rule 106 CPC will apply.
For ready reference of the case, Rules 105 and 106 of Order XXI of C.P.C
are extracted below:-
“105. Hearing of application-(1) The Court, before which an
application under any of the foregoing rules of this Order is pending, may fix a day
for the hearing of the application.
(2) 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.
(3) Where the applicant appears and the opposite party to whom the notice has
been issued by the Court does not appear, the Court may hear the application ex
parte and pass such order as it thinks fit.
Explanation. An application referred to in sub-rule(1) includes a claim or objection
made under rule 58.”
“106. Setting aside orders passed ex parte, etc-(1) The applicant, against whom an
order is made under sub-rule (2) of rule 105 or the opposite party against whom an
order is passed ex parte under sub-rule (3) of that rule or under sub-rule (1) of rule
23, may apply to the Court to set aside the order, and if he satisfies the Court that
there was sufficient cause for his non-appearance when the application was called on
for hearing, the Court shall set aside the order on such terms as to costs or
otherwise as it thinks fit, and shall appoint a day for the further hearing of the
application.
(2) No order shall be made on an application under sub-rule (1) unless notice of the
application has been served on the other party.
(3) An application under sub-rule(1) shall be made within thirty days from the date
of the order, or where, in the case of an ex parte order,
the notice was not duly served, within thirty days from the date when the applicant
had knowledge of the order.”
9. In the light of above, Rule 105 C.P.C specifically provides that the
Executing Court may fix a date for hearing of the application. Eventualities
covered by sub-rules (2) and (3) of Rule 105 C.P.C could occur only in a
case where the Executing Court did fix a date for hearing of the
application. Rules 105 and 106 of Order XXI of C.P.C does not apply at all.
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When the execution petition posted for taking steps before the date fixed for
hearing, it is not covered by Rule 106 of Order XXI of C.P.C. The
consequences of non appearance of the parties on any such date before date
fixed for hearing are not provided under Order XXI of C.P.C. Those cases
are covered by the inherent powers of the Court which are saved under
section 151 of C.P.C. For filing an application under section 151 of CPC, no
period of limitation is provided under the CPC. This aspect of the matter has
been clearly dealt with by the Hon’ble Supreme Court in the case of
“Damodaran Pillai” (supra) relied by the learned senior counsel for the
petitioners.
10. The contention of the learned counsel for the respondent no. 5 of
not applying limitation petition under Order XXI of the C.P.C, can be
accepted once the said application is filed under Order XXI of Rule 106 of
the C.P. and if the order is passed after fixing date of hearing.
11. What has been discussed hereinabove, the said application was
filed under Section 151 of C.P.C. Thus, it is crystal clear that restoration
contemplates of Rule 106 of Order XXI of C.P.C referable to the date of
hearing only. From the order-sheets annexed with the writ petition, it is
crystal clear that the said execution case was not posted for hearing and
the fact of dismissal and long pendency of the execution due to stay of the
order of the High Court and Hon’ble Supreme Court has already been
discussed hereinabove.
12. In view of above facts, reasons and analysis , the impugned
order dated 20.03.2012 passed by the learned Munsif, Lohardaga in Misc
Case No. 01 of 2005 is set aside. The Execution Case No. 2 of 1988 is
restored in its original file. The petitioners and respondent no.5 will appear
before the learned court and the learned court after providing opportunity to
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both sides will proceed further in accordance the law for passing proper order
in Execution Case No. 2 of 1988.
13. This writ petition is allowed in above terms and disposed of.
Pending I.A, if any, stands disposed of.
Dt.30.03.2026 ( Sanjay Kumar Dwivedi, J.)
Satyarthi/A.F.R
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