Order XXI Rule 106 CPC - Setting Aside Ex Parte Orders
Order 21 Rule 106 of the Code of Civil Procedure, 1908 provides a remedy where an execution-related application was dismissed for non-appearance or an order was passed ex parte in the circumstances specified by the rule.
Text and meaning of Order XXI Rule 106
Rule 106(1) - Application for setting aside an order
An applicant whose application was dismissed under Order XXI Rule 105(2), or an opposite party against whom an ex parte order was made under Rule 105(3) or Rule 23(1), may apply to the court to set aside that order. On proof of sufficient cause for non-appearance, the court shall set it aside on such terms as to costs or otherwise as it thinks fit and fix a date for further hearing.
Rule 106(2) - Notice to the other party
The court cannot make an order on the restoration application unless notice of that application has been served on the other party.
Rule 106(3) - Time limit
The application must ordinarily be made within 30 days from the date of the order. Where an ex parte order was passed without due service of notice, the 30 days run from the date when the applicant had knowledge of the order.
Read the official Code of Civil Procedure, 1908 (India Code PDF) for the statutory wording and applicable state amendments.
Who can seek restoration?
The remedy is available to a party covered by the specified procedural orders: an applicant whose execution application was dismissed because of absence under Rule 105(2), or an opposite party against whom the court proceeded ex parte under Rule 105(3) or Rule 23(1). The application is ordinarily made before the court that passed the order.
What is sufficient cause?
Sufficient cause means a credible reason explaining why the party could not appear when the matter was called for hearing. The court evaluates the facts, supporting documents, conduct of the party and the applicable procedural law. The rule does not make restoration automatic merely because an application is filed.
Limitation period under Rule 106(3)
The ordinary period is 30 days from the date of the order. The knowledge-based starting point is expressly provided for an ex parte order where notice was not duly served; it is not a general extension for every dismissal for default. Any question of condonation, exclusion of time or local amendment requires separate examination of the governing law and binding decisions.
Procedure for an application under Order XXI Rule 106
Identify the order and the provision under which it was passed; explain the absence with dates and supporting evidence; address limitation and service of notice; and request that the order be set aside and the original application be restored for hearing. The other party must receive notice before the court decides the application.
Related legal provisions
Order XXI Rule 105: permits the court to fix hearings, dismiss an application for the applicant's absence, or proceed ex parte against an absent opposite party.
Order XXI Rule 23(1): concerns proceedings after notice to show cause against execution.
Order XLIII Rule 1(ja): addresses an appeal against rejection of an application under Rule 106(1), where the original application is appealable.
Order IX Rule 13: provides a distinct remedy concerning an ex parte decree, not every ex parte order in execution.
Frequently asked questions
Can an execution application dismissed for default be restored?
Yes, where the dismissal falls under Order XXI Rule 105(2) and the applicant establishes sufficient cause in a properly filed Rule 106 application.
Is the limitation always counted from knowledge of the order?
No. The rule generally counts 30 days from the order; knowledge is relevant to the specified case of an ex parte order where notice was not duly served.
Is notice necessary before restoration?
Yes. Rule 106(2) requires service of notice on the other party before an order is made on the application.
This article is general legal information. The applicable rules and remedies may vary with state amendments, the nature of the order and the facts of the case.