FAISAL ZAMAN KHAN, J. Through this civil revision orders dated 06.10.2017 and 21.09.2020 passed by the learned Additional District Judge, Lahore (Executing Court), have been assailed. By virtue for the former order execution petition filed by the petitioner was dismissed for non-prosecution and through the latter an application for restoration of the execution petition filed by the petitioner was also dismissed.
2. Succinctly, the facts of the case are that a suit for recovery under Order XXXVII, C.P.C., was instituted by the petitioner against the respondent, which was decreed vide judgment and decree dated 18.06.2016, whereupon, an execution petition was filed by the petitioner, which was dismissed for non-prosecution on 06.10.2017. Feeling aggrieved, petitioner filed an application for its restoration, which was dismissed vide impugned order dated 21.09.2020, hence, this civil revision.
3. Learned counsel for the petitioner submits that learned Executing Court erred in law in not restoring the execution petition on the sole ground that there is no provision of law for seeking restoration of the execution petition, which is dismissed for non-prosecution, therefore, the application for restoration is not maintainable. He while placing reliance on judgment reported as Ark Garment Industry through Chief Executive v. Federation of Pakistan through Secretary, Ministry of Commerce, Islamabad and another (2018 CLC 155) submits that under Section 151, C.P.C. an order for restoration could be passed.
4. In spite of service and publication in the newspaper none has entered appearance on behalf of the respondent, therefore, he was proceeded against ex parte vide order dated 19.04.2022.
5. Arguments heard. Record perused.
6. The moot point, which requires determination by this Court, is as to whether the learned Executing Court is invested with the powers to restore an execution petition, which was dismissed for non-prosecution.
7. There is no cavil to the proposition that there is no specific provision in the Code of Civil Procedure, 1908, which stricto sensu could be applied to the proposition in hand, however, it is equally important to note that if there was no provision available for seeking restoration of the execution petition, isn't the court invested with the inherent powers under Section 151, C.P.C. for passing appropriate orders in order to meet the ends of justice.
8. While dealing with an identical proposition, a learned Division Bench of the Honourable Sindh High Court in a case reported as Messrs United Bank Limited through Attorneys and 2 others v.
Messrs Plastic Pack (Pvt.) Limited and 4 others (2012 CLC 229) has held as follows:- "The reason assigned in the impugned order is that once the Execution Application is dismissed in non-prosecution it cannot be restored, is not a correct proposition of law. Only question, which is crucial to decide is to see whether in the restoration application sufficient grounds for restoration have been made out or not and, if Order IX, Rule 9, C.P.C., is not strictly applicable, even then keeping in view the sufficient cause, the execution application would have been restored under the inherent powers conferred upon the Court under section 151, C.P.C. the expression 'sufficient cause' is not capable of being confined to precise, identical, and invariable definition, nor any hard and fast rule can be propounded as to encompass all possible eventualities which may arise due to particular fact and circumstance of each case.
The Court has also inherent powers under section 151, C.P.C., to make such orders, as may be necessary for the ends of justice and to prevent the abuse of the process of the Court. These are all enabling provisions; the powers thereunder can be exercised by the Court to cover ostensibly impossible situations, for complete dispensation of justice, for which C.P.C. has been designed, but despite the best effort of the draftsman, to cater for all possible situations, if it is found lacking in meeting some eventualities, the Court can act ex delicto justitiae, supply the omission in the procedure, adopt methodology for effectually carrying out the purpose of view."
It has further been held in the said judgment that:- "The Order IX, Rule 9, C.P.C. has been basically designed for the restoration of suit wholly or partly dismissed under Rule 8, and this provision does not speak anything about the restoration of application dismissed in default. It is also well-settled principle of law that absence of necessary provision does not necessarily lead to absence of jurisdiction in a civil court for restoration of execution application dismissed in default upon proof of sufficient cause. It can be restored in exercise of inherent powers."
In the case of "Ark Garment Industry through Chief Executive" mentioned supra, it has been held as follows:-- "The question arises here is that whether in the restoration application sufficient grounds for restoration have been made out or not and, if Order IX, Rule 9, C.P.C. is not strictly applicable, even then keeping in view the sufficient cause, the execution application can be restored under the inherent powers conferred upon this Court under section 151, C.P.C. The expression 'sufficient cause' is not capable, of being confined to precise, identical, and invariable definition, nor any hard and fast rule can be propounded as to encompass all possible eventualities which may arise due to particular fact and circumstances' of each case. This Court has also inherent powers under Section 151, C.P.C.; to make such orders, as may be necessary for the ends of justice and to prevent the abuse of the process of the Court. These are all enabling provisions; the powers, thereunder can be exercised by the Court to cover ostensibly impossible situations, for complete dispensation of justice, for which C.P.C. has been designed, but despite the best efforts of the draftsman, to cater for all possible situations, if it is found lacking in meeting some eventualities, the Court can act ex delicto justitiae,, supply the omission in the procedure, adopt methodology, for effectually carrying out the purpose in view."
The view upon the above proposition was also taken by a learned Division Bench of the Honourable Oudh High Court in a case reported as Raja Bajrang Bahadur Singh-Judgment-debtor v. Thakur Suraj Narain Singh and others--Decree holders [AIR (32) 1943 Oudh 210) in the following terms:- "we are of the opinion that although 0.1X does not govern execution proceedings, the Court has jurisdiction to restore an execution application dismissed for default under its inherent powers, even though a fresh application has become time-barred."
While dealing with an identical proposition, a learned Division Bench of the Honourable Calcutta High Court in judgment reported as Radha Kissen Chamria and others v. Keshardeo Chamria [AIR (33) 1946 Calcutta 488] has held as follows:- "[9] ".......... In view of the expressed provision of 5.151, we cannot say that the Court is altogether incapable of-exercising its inherent powers in regard to the restoration of execution petitions dismissed for default but at the same time we are of opinion that there must be clear justifying necessity for exercising such extraordinary powers and the legitimacy of its exercise must be tested with reference to principles which are well established by authorities. When the Court passes an order of dismissal inadvertently or without being aware certain fact, which ought to have been brought to its notice, it can certainly correct its own error in exercise of its inherent powers. But there is no justification for the exercise of such powers where the dismissal was due primarily to the negligence of a party. It has also got to consider whether the other side has or has not justice on his side or has acquired a valuable right under the law of limitation which it may not be just to override. Ordinarily, this Court would not interfere with the exercise of discretionary powers by the Court below, but it may do so if it is satisfied that the lower Court misdirected itself on a material point of law or fact or failed to advert to and consider such matters as are essential for the proper disposal of the case."
9. A cumulative reading of the above judgments would show that when an execution petition is dismissed for non-prosecution, the Executing Court can restore the same in exercise of its inherent powers vested in it under Section 151, C.P.C. as interpreted in a judgment reported as North-West Frontier Province Government, Peshawar through Collector, Abbotabad and another v. Abdul Ghafoor Khan through legal heirs and 2 others (PLD 1993 SC 418) as the said provision is an enabling provision and cater for an ostensible impossible situation where no express provision of law is attracted and since there is no prohibition for exercising such jurisdiction, thus mere absence of provision does not curtail or abridge the jurisdiction of a court from passing an order so as to advance and meet the ends of justice.
10. In the afore-referred circumstances since it was held by the learned Additional District Judge that application for seeking restoration of the execution petition was filed within time, hence, the court fell in error in not exercising the jurisdiction vested in it under Section 151, C.P.C. qua restoration of the execution petition.
11. In view of the above, this civil revision is allowed, as a sequel to which impugned orders are set aside, resultantly, the application seeking restoration of the execution petition, which was dismissed for non-prosecution, is accepted and the execution petition filed by the petitioner shall be deemed to be pending before the learned Executing Court, which shall decide the same on merits. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.