Ayappa Naicker vs Subbammal and Another

S. Mohan, J.—The short fact leading to these two civil revision petitions is that O.S. No 417 of 1971 was filed by one Subbammal, the

respondent in C.R.P. No. 2974 of 1981 on the foot of a promissory note. On 24th September 1971, it resulted, in an exparte decree for a sum of

Rs 1,300. On 13th July, 1972 E. P. No. 348 of 1972 was filed and on 21st February 1973, a sale of an extent of 82 cents with the well took

place. The second respondent in C.R.P. No. 2975 of 1981 was the Court-auction-purchaser. Thereafter on 19th March 1973, the judgment-

debtor filed an application under Order 21, Rule 90, CPC to set aside the sale in E. A. No. 574 of 1973. In the meanwhile, the judgment-debtor''s

son claiming half-share in this property which was the subject matter of sale, filed O.S. No. 670 of 1973. That suit was dismissed. Against that,

A.S. No. 179 of 1974 was filed which was allowed. Ultimately the matter came up to this Court S.A. No. 922 of 1978. That was allowed on 21st

June, 1971. What had happened during the interregnum was that on 23rd December, 1978 the application in E. A, No. 574 of 1973 was

dismissed and the sale was confirmed on 7th July, 1979. E. A. No. 205 of 1979 was filed to restore E, A. No. 574 of 1973 and E. A No. 204 of

1979 was filed to set aside the confirmation of sale. The executing Court passed an order dismissing the application. Thereupon the matter was

taken up in C.M.A. The lower appellate Court pointed out that by reason of the provision of Order 21, Rule 106, Civil Procedure Code, the

application should have been made within 30 days and therefore it could not be entertained. Accordingly, he confirmed the dismissal. Thus, these

two revisions.

What is argued by Mr. T. R. Mani learned Counsel for the petitioner, is ''that it is not Order 21, Rule 106, Civil Procedure Code, that would

apply, but it is only Order 21, Rule 105 that would apply. In so far as the Madras amendment states that the pro-visions of Section 5 of the

Limitation Act of 1908 will apply to applications under Sub-rule (1) of Rule 105 of Order 21, Civil Procedure Code, it is that provision which

should be held applicable. This is because in the Central Rule 106, there is no such provision. If that be so it is not because of repugnancy between

the Central Code and the Madras amendment. on the contrary, it is a clear case of unoccupied field being occupied by the State Legislature. As to

the reason for this specific provision it can be gathered by a reading of the decision in Sri Tankala Appalaswamy Gari Samba Murthy Vs.

Gopasundara Sabatho, . That ruling clearly shows that the inherent powers cannot be invoked. Therefore, notwithstanding the fact that Section 5

of the Limitation Act says that the provisions of this section cannot be made applicable to applications arising under Order 21, Civil Procedure

Code, this being strictly an application not under Order 21, Civil Procedure Code, but only to set aside an exparte dismissal during execution

proceedings, it is Order 9 that would apply.

In opposition to this Mr. Alagar learned Counsel for the respondents, would state that there is a specific provision under Order 21, Civil

Procedure Code, in relation to setting aside an exparte order. It is Rule 105 of Order 21, CPC no doubt. But, Sub-rule (4) of that rule cannot any

longer apply because of the embargo contained u/s 5 of the Limitation Act. Sub-rule (4) of Rule 105 of Order 21, CPC was perfectly in accord

with the old Section 5 of the earlier Limitation Act, 1908. When the same is not permissible under the new Act, there cannot be a repugnant

provision under the amended Act. In such a case it should be held that the provisions of the Limitation Act will not apply. More than that here is a

case wherein there is not even a formal application for condonation of the delay. All that the ruling cited by the other side lays down is that when

there are no specific provisions under the Civil Procedure Code, with regard to matters arising in execution stage, the inherent power u/s 151, Civil

Procedure Code, (sic) cannot be invoked-Beyond that it does not help the petitioner in any manner.

Having regard to the common case between the parties that it is only Rule 105 of Order, 21, Civil Procedure Code, (Madras Amendment),

which has been mistakenly quoted as Rule 106 of Order 21, Civil Procedure Code, (Central Code) in the order of the courts below, I will take it

that it is Rule 105 of Order 21, Civil Procedure Code, (Madras Amendment) which is applicable. That rule as contained in the Civil Procedure

Code, (Central Code) can be extracted.-

106 Setting aside orders passed ex parts, 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 satisfied 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 exparte order, the

notice was not duly served, within thirty days from the date when the applicant has knowledge of the order.

It is in contradistinction to this that under Rule 103 of Order 21, of the Madras Amendment, Sub-rule (4) states that the provisions of Section 5 of

the Indian Limitation Act, 1908 shall apply to applications under Sub-rule (1) The amendment is prior to the Limitation Act of 1963. In so far as

reference is made to Section 5 of the Indian Limitation Act, 1908, it is necessary for me to note what was old Section 5 under 1908 Indian

Limitation Act, That may be extracted:

Any appeal or application for a review of judgment or for leave to appeal or any other application to which this section may be made applicable

by or under any enactment for the time being in force may be admitted after the period of limitation prescribed therefor, when the appellant or

applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.

Therefore having regard to the above language, it was permissible to have such a provision wherein the position is clearly changed at present.

Section 5 of the present Limitation Act, 1963, states that any appeal or any application under any of the previsions of Order 21, Civil Procedure

Code, 1908, may be admitted after the prescribed period if the appellant or the appellant satisfies the Court that he had sufficient cause for not

preferring the appeal or making the application within such period. The Explanation is omitted as unnecessary. Therefore, with reference to

applications under Order 21, Civil Procedure Code, there is the statutory bar in applying Section 5 of the Limitation Act. It may also be relevant to

note Section 32 of the Limitation Act before it was repealed by Central Act LVI of 1974. It is stated under that section that the Indian Limitation

Act, 1908 is hereby repealed. Therefore, after 1st January, 1964, Sub-rule (4) of Rule 105 of Order 21, Civil Procedure Code, could no longer

be applied, because of the express language of Section 5 of the Limitation Act. That is why the Central Code, in Rule 106 of .Order 21, Civil

Procedure Code, did not make any reference to the same saying that Section 5 of the Limitation Act would be applicable. In view of this, the

order of the Court below ought to be upheld. However, what is relied upon by the petitioner is the ruling in Sri Tankala Appalaswamy Gari Samba

Murthy Vs. Gopasundara Sabatho, , That ruling in categoric terms lays down-

The inherent power vested in Courts u/s 151, cannot be invoked where the procedure to be adopted in a particular case or class of cases is

expressly provided for by the Code and in such matters the Court cannot act except under the conditions specified by the express provisions. Prior

to the insertion of rules 104 and 105 in Order 21, by the Andhra Amendment, there was no provision in Order 9, for restoration of an application

dismissed for default in an execution proceeding. After the insertion, a specific statutory provision has been made in Order 21, Rule 105(1) under

which an execution petition could be restored on sufficient cause being shown for default. Consequently, in Andhra Pradesh, the question of

restoration of an execution petition by the exercise of inherent powers by the Court u/s 151 does not arise at all after the insertion of Rule 105.

The question of invoking inherent powers u/s 151, Civil Procedure Code, does not arise in this case. That is because of the specific provision

contained under Rule 106 of Order 21, CPC If, therefore, there is repugnancy between the Central Code, under Rule 106, and the; Madras

Amendment under Sub-rule (4) of Rule 105 of Order 21, it is Section 97 of the Civil Procedure Code, in relation to repeal and savings that would

apply. That says that any amendment made, or any provision inserted in the principal Act by a State Legislature or a High Court before the

commencement of this Act shall except in so far as such amendment or provision is consistent with the provisions of the principal Act, as amended

by this Act, stand repealed.

The principal Act, namely Central Code does not make Section 5 of the Limitation Act applicable while the Madras amendment does make it

applicable. Therefore, to that extent, there is repugnancy.

There is yet another way of looking at the matter. Sub-rule (4) of Rule 105 of Order 21, Civil Procedure Code. (Madras amendment) makes a

reference only to the Indian Limitation Act, 1908. After it is repealed there is no possibility of applying the same. However, an argument may be

attempted that when a reference is made to Limitation Act of 1908, pro (onto, it will take within its fold the Limitation Act, of 1963, as well. But,

that argument is beside the point having regard to the repugnancy pointed out by me. Section 141, Civil Procedure Code, says as follows-

Section 141, Miscellaneous proceedings.--The procedure provided in this Cede in regard to suits shall be followed, as far as it can be made

applicable, in all proceedings in any Court of civil jurisdiction.

Explanation--In this section, the expression ''proceedings'' includes proceedings under Order 9, but does not include any proceedings under Article

226 of the Constitution.

This cannot be considered as a proceeding under Order 9 because of the express provisions under Order 21 to which have made reference

earlier;

There is not even a formal application in this case by the revision petitioner for the coadonation of the delay. That of course, cannot be put

against the petitioner much. Even on merits, what I find is that as far as the father is concerned the proceedings had come to a close long ago. It is

not the son who is now seeking to agitate his rights. For all these reasons these two civil revision petitions will stand dismissed. No costs.