Order XXI Rule 105 CPC - Hearing of Applications
Order 21 Rule 105 of the Code of Civil Procedure, 1908 (CPC) governs the hearing of applications in execution proceedings. It explains what a court may do when an applicant or the opposite party fails to appear on the date fixed for hearing.
Text of Order XXI Rule 105 CPC
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.
Meaning and legal effect of Rule 105
Sub-rule (1): Fixing the hearing. The executing court may schedule a hearing for an application under the preceding rules of Order XXI. The explanation expressly includes claims and objections under Rule 58, which deals with adjudication of claims or objections to attachment of property in execution.
Sub-rule (2): Applicant's absence. If the applicant fails to appear when the application is called for hearing, the court may dismiss the application. The word "may" indicates judicial discretion; dismissal is not automatic merely because the applicant is absent.
Sub-rule (3): Opposite party's absence. If the applicant appears but the notified opposite party does not, the court may proceed ex parte (in that party's absence) and make an appropriate order. The court must still consider the application on its merits and comply with applicable procedural requirements.
What happens after dismissal or an ex parte order?
Order XXI Rule 106 CPC provides for setting aside certain orders passed under Rule 105(2) or Rule 105(3), subject to its conditions. Ordinarily, an application under Rule 106(1) must be made within 30 days of the order; where an ex parte order was made without due service of notice, the period runs from the date the applicant had knowledge of the order, as provided in Rule 106(3). Questions about delay, limitation and the availability of other remedies depend on the applicable law and judicial decisions.
Related provisions of Order XXI
- Rule 58: Adjudication of claims or objections to attachment of property.
- Rules 97 to 101: Resistance to delivery of possession, dispossession complaints and determination of relevant rights.
- Rule 103: Certain adjudication orders have the force of decrees and are appealable as decrees.
- Rule 105: Hearing of execution applications and consequences of non-appearance.
- Rule 106: Procedure for setting aside qualifying dismissal or ex parte orders.
Practical points for parties
Parties should keep track of hearing dates, ensure that notice is properly served, preserve relevant documents and promptly seek legal advice if an application is dismissed or decided in their absence. The nature of the order, the date of service and the applicable limitation period can affect the available remedy.
Official legal resources
Read the Code of Civil Procedure, 1908 on India Code and consult the India Code official legislation portal for the statute and any applicable amendments. State amendments and local procedural rules should also be checked where relevant.