Ganapathy vs Murugesa Chetty

Sivasubramaniam, J.—This revision is directed against the order passed in R.E.A. No. 276 of 1985 in R.E.P. NO. 61 of 1984 in O.S. No.

645 of 1974 on the file of the District Munsif, Harur. The petitioner is the judgment debtor. The respondent is the decree holder. The respondent

filed the petition in R.E.P. No. 91 of 1982 on the file of the District Munsif''s Court, Krishnagiri, to execute the decree against the petitioner

obtained in O.S. No. 645 of 1974. The Execution Petition was transferred to the District Munsif''s Court at Harur and it was re-numbered as

R.E.P. No. 61 of 1984. The The petition was posted on 25-2-1984 for enquiry. As the petitioner herein was absent, he was set ex parte and

further proceedings were taken in the execution application. Ultimately, the sale was posted to 27-6-1985. At that time, the petitioner filed the

application in R.E.A. No. 276 of 1985 to set aside the ex parte order passed on 25-2-1984 and another petition to stay the sale vested on 27-6-

1985. The said petition was filed on 22-6-1985 and the same come to be dismissed on 27-6-1985. Consequently, the sale had taken place on

that date and the properties were sold in favour of third parties. It is against the said order, the present revision petition has been filed.

Mr. Sankarasubbu, learned counsel for the petitioner, strenuously argued that the petitioner was not given reasonable opportunity to put forth his

objections in the execution proceedings as the execution petition was transferred from District Munsif''s court at Krishnagiri to the District

Munsiff''s Court, Harur, that he was not aware of the said transfer and his counsel at Krishnagiri Court did not inform him about the transfer and

therefore he had no knowledge about the execution proceedings taken before the District Munsif''s Court at Harur. On the basis of this, learned

counsel submits that he must be given an opportunity to contest the execution application. According to him, he has filed the said application within

thirty days from the date of his knowledge about the ex parte order passed on 25-2-1984. The said submission appears to be incorrect. In

paragraph 3 of the petition, the petitioner himself has stated that when he came to Harur to consult his counsel, be was informed of the said ex

parte order only two months after the said order was passed. Therefore, he must have known about the ex parte order in or about 25-4-1984.

But, we find that the present petition was filed only on 22-6-1985, long after the date on which he is alleged to have had knowledge about the ex

parte order. The only provision under which such an ex parte order can be set aside is O.21, R.106 of the Code of Civil Procedure. Sub-R.(3) of

R.106 reads as follows:

An application under sub-R. (1) shall be made within thirty days from the date of the order, or where, in the case of ex parte order, notice was not

duly served, within thirty days from the date when the applicant had knowledge of the order.

The said provision regarding the thirty days'' time prescribed for filing the application, is mandatory and the same cannot be extended by applying

the provisions of S.5 of the Limitation Act, Even if there is any delay which is of justifiable nature, it cannot be excused under S.5 of the Limitation

Act as this Court has taken the view that the provisions of S.5 of the Limitation Act are not applicable to an application filed under O.21, R.106,

C.P.C. The question of knowledge would come in only when notice has not been served on the judgment-debtor in the execution proceedings. In

such a case, it is open to him to file a petition within thirty days from the date of knowledge of the ex parte order passed against him. In this case, it

is admitted that he was served with notice and he has engaged a counsel also in the execution proceedings; Therefore, the mere fact that his

counsel did not inform him about the transfer of the case to the District Munsif''s Court at Harur will not clothe him of a right to file the application

beyond thirty days from the date of order. Therefore, patently, the application filed by the petitioner was beyond the period of limitation and

therefore no relief could be granted to him by the executing Court.

Learned Counsel for the petitioner further submitted that even though O.21, R.106, C.P.C. is not applicable, he is entitled to maintain this

application under the provisions of S.47, C.P.C. In support of his contention, he relies upon the decision of the Full Bench of this Court in A.P.V.

Rajendran v. S.A. Sundararajan 93 L.W. 47, wherein it has been held as follows:

Though S.47 is very wide in its terms and in one sense all questions relating to the execution, discharge or satisfaction of the decree that arise

between the decree holder and the judgment-debtor are within the purview of that section, nevertheless that section, ought to be so interpreted as

not to render redundant the other provisions contained in the Code, particularly Rr. 89, 90 and 91 of O.21, and as between the judgment-debtor

and the decree-holder only such applications to set aside an auction purchase made by the decree-holder as do not come within the purview of Rr.

89, 90 and 91 of O.21 are within the scope of S.47 of the Code. Notwithstanding the wording of S.47 which is enough to cover all applications to

set aside sales of the ground either of illegality or of irregularity, its scope has naturally to be restricted so as to give due effect to O.21, R.90,

C.P.C. Thus, if the sale is sought to be set aside on the ground of material irregularity in publishing and conducting the sale within the meaning of

O.21, R.90 then S 47 cannot come into play at all, and the sale could be set aside only by invoking O.21, R.90. But if the sale is claimed to be

void for certain illegality or voidable on ground of material irregularities not referred to in O.21, R.90 then S.47 has to be invoked and in such

cases O.21, R.90, C.P.C. cannot come into play at all.

I am afraid that the said decision is of no help to the petitioner. The principle decided therein has no relevance as far as the present application is

concerned. There, the Full Bench considered the question about the applicability of S.47, C.P.C. where the provisions contained in O.21, R.90,

C.P.C. is not applicable in a case to set aside the sale. The Full Bench has held that if the sale is claimed to be void for certain illegality or voidable

on the ground of material, irregularities not referred to in O.21, R.90, C.P.C. then S.47 has to be invoked and in such cases O.21, R.90, C.P.C.

cannot come into play at all. I do not know how the said principles can be applied to the facts of the present case. First of all, the petitioner is; not

challenging the sale that had taken place subsequent to the impugned order. The present petition is filed only to set aside the ex parte order passed

in the execution proceedings and there is a specific provision in O.21, R.106, C.P.C. to set aside the ex parte order. No other provision can come

into play in'' so far as such orders are concerned.

Learned counsel for the respondent relied on Keshardeo Chamria Vs. Radha Kissen Chamria and Others, There, the Supreme Court

considered the question whether an order dismissing the execution petition ex parte could be set aside by the High Court either in the exercise of its

appellate or revisional powers. The Supreme Court held that the High Court has no jurisdiction in the exercise of its appellate jurisdiction to

reverse this decision and it was pointed out that it was difficult to say that the order itself amounted to a final determination of any question relating

to execution, discharge or satisfaction of the decree and that being so, it did not fall within the ambit of S.47, C.P.C. and that such proceedings are

in their nature collateral to the execution and independent of it and therefore it does not relate to the execution, discharge or satisfaction of the

decree so as to attract the provisions of S.47, C.P.C. It was further contended by the learned counsel for the petitioner that he is entitled to certain

benefits under the Debt Relief Act 50 of 1982. Such a claim could be considered only after the ex parte order is set aside. If the Debt Relief Act

gives a right to claim such a benefit in spite of the ex parte order and the consequent Court auction, then only such a benefit will be available to him

and not in other cases. I do not find any grounds to interfere with the orders of the lower Court and therefore this revision is dismissed. No costs.

It is represented that in pursuance of the interim orders passed by this Court, the decree amount has been deposited by the petitioner. It is open to

the petitioner to withdraw the amount as the revision petition itself has been dismissed.