Mari Flora vs K.K. Nanjappan

V. Periya Karuppiah, J.—These Revisions have been preferred by the petitioner/decree holder against the dismissal of E.A. No. 464 of

2007 seeking for condonation of delay of 190 days in filing the application to restore the execution petition and also against the dismissal of E.A.

No. 465 of 2007 filed to restore E.P.40 of 1992 to the file, respectively.

Heard Mr. S. Kaithamalai Kumaran learned Counsel appearing for the revision petitioner and Mr. N. Manoharan learned Counsel appearing

for the respondent.

According to the submissions made by the learned Counsel for the petitioner, the petitioner was the decree holder in O.S. No. 170 of 1983 and

he had obtained a decree in his favour on 16.3.1988. The appeal preferred by the respondent before the first appellate Court in A.S. No. 34 of

1990 was also dismissed by confirming the judgment of the trial Court. Similarly, the second appeal preferred by the respondent/judgment debtor

in S.A. No. 236 of 1992 was also dismissed and decree passed by the trial Court was confirmed and accordingly, execution petition was filed by

the revision petitioner/decree holder in E.P. No. 40 of 1992. But, the said E.P. No. 40 of 1992 was dismissed by the Execution Court on

31.07.2007 for non-appearance of the petitioner. However, the revision petitioner/decree holder filed another execution petition in E.P.4.2007,

but the said EP.4 of 2007 was not filed within three years from the date of judgment of the High Court made in S.A. No. 236 of 1992 ie,

18.07.2002 and therefore, the said EP. No. 4 of 2007 was not pressed with a fond hope that the earlier EP. No. 40 of 1992 could be restored.

He would further submit that accordingly the revision petitioner/decree had filed the applications to restore the EP to file and to condone the delay

of 190 days in filing the said application before the said Court. The Execution Court has not considered the case of the petitioner and did not

accept the reasons mentioned therein stating the delay in filing the petition was not explained by the petitioner and it had dismissed the applications.

The learned Counsel for the revision petitioner would submit that the said decision of the lower Court is not in accordance with law and it has

become necessary to interfere with the orders of the Execution Court and thereby the revision has to be allowed.

The learned Counsel for the respondent would submit in his argument that the lower Court has correctly come to the conclusion of dismissing

the applications since the reasons assigned by the petitioner were not convincing and the petitioner cannot also seek for setting aside the exparte

order and to restore the EP to the file, since there was enormous delay. He would also submit that Section 5 application is not applicable to the

execution proceedings and on that score also, the application to condone the delay of 190 days is not maintainable. The learned Counsel for the

respondent would cite a judgment of the Honourable Apex Court reported in Damodaran Pillai and Others Vs. South Indian Bank Ltd., , to

support his case. Therefore, he would submit the Court that no interference with the order passed by the lower Court is necessary and

accordingly, the Revision may be dismissed.

I have given anxious thoughts to the arguments advanced by both sides. Both the revisions have been filed by the petitioner against the dismissal

orders passed by the lower Court in the application filed by the petitioner to condone the delay of 190 days in filing the application to restore the

E.P.40 of 1992 filed by the petitioner and the application to restore the E.P.40 of 1992 to the file. The lower Court was not convinced with the

reasons assigned by the petitioner for condoning the delay. However, it did not go into the question of maintainability of the application seeking for

condonation of delay of 190 days in filing the application to restore EP.40 of 199.

For the purpose of understanding the provisions Section 5 of Limitation Act, it is extracted as below:

Extension of prescribed period in certain cases_ Any appeal or any application, other than an application under any of the provisions of Order

XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he

had sufficient cause for not preferring the appeal or making the application within such period.

Explanation_ That fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or

computing the prescribed period may be sufficient cause within the meaning of this section.

From the ingredients of the aforesaid section, we could see that it could be applicable to all the proceedings except under Order 21 of CPC.

It is also the dictum of our Honourable Apex Court reported in Damodaran Pillai and Others Vs. South Indian Bank Ltd., ., which would run as

follows:

Rule 106(3) clearly shows that when an application is dismissed for default in terms of Rule 105(2), the starting point of limitation for filing of a

restoration application would be the date of the order and not the knowledge thereof. As the applicant was represented in the proceeding through

his advocate, his knowledge of the order is presumed. The starting point of limitation being knowledge about the disposal of the execution petition

would arise only in a case where an exparte order was passed [under Rule 105(3)] and that too without proper notice upon the judgment-debtor

and not otherwise. Thus, if an order has been passed dismissing an application for default under Rule 105(2), the application for restoration thereof

must be filed only within a period of thirty days from the date of the said order and not thereafter. Therefore, the date when the decree-holder

acquired the knowledge of the order of dismissal of the execution petition was wholly irrelevant.

It is also trite that the civil Court in the absence of any express power cannot condone the delay. For the purpose of condonation of delay in the

absence of applicability of Section 5 of the Limitation Act, the Court cannot invoke its inherent power.

Application of Section 5 of the Limitation Act has been expressly excluded in proceedings under Order 21 of CPC. Therefore, even an application

u/s 5 of the Limitation Act was not maintainable. A fortiori for the said purpose, inherent power of the Court could not be invoked.

Therefore, the petition u/s 5 of Limitation Act cannot be filed in execution proceedings for condonation of delay. However, in this case the

application has been filed under Order 21 Rule 105 CPC. Order 21 Rule 105 of CPC would run as follows:

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 exparte 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.

A careful perusal of the said provision would enlighten us regarding the hearing of the application and the powers of the Court to pass the orders

including exparte orders. The correct provision is Order 21 Rule 106 CPC, which would run as follows:

Setting aside orders passed exparte, etc_(1)The applicant, against whom an order is made under Sub-rule (2) Rule 105 or the opposite party

against whom an order is passed exparte under Sub-rule (3) of that rule or under Sub-rule (1) of Rule 23, may apply to the Court to set side the

order, and if he satisfies 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 or 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 applicant had knowledge of the order.

According to Rule 106(3), any application to be filed under Sub-rule 1 shall be made within 30 days from the date of the order or within 30 days

from the date when the applicant had the knowledge of the order.

In this case the petitioner has sought for the condonation of delay of 190 days in filing the application to restore the EP. The averments made in

the affidavit would not disclose that the petitioner had the knowledge of exparte order of dismissal within 30 days prior to the filing of the petition.

Therefore, it would not come under the second limb of the Sub-rule 3 of Order 21 Rule 106 of CPC. Therefore, the petitioner ought to have filed

the application petition to set aside the exparte order of dismissal in EP.40 of 1992 within 30 days from the date of the said dismissal. As already

said the petitioner had filed the application, with the application to condonation of delay of 190 days, for restoring the said EP.40/92. As we have

seen already, the condonation of delay u/s 5 of the Act may not be invoked as far as the proceedings under Order 21 of CPC are concerned.

Therefore, the application filed to condone the delay of 190 days caused in filing the application to set aside the order of dismissal is not at all

maintainable. The lower Court, without discussing the position of law, had factually come to the conclusion that the petitioner was not entitled for

the condonation of delay. Therefore, there could not be any interference with the orders passed by the lower Court. Consequently, the order of

dismissal of the the application filed to set aside the exparte order of dismissal and to restore the E.P. No. 40 of 1992 to the file was also not liable

to be interfered since both the petition filed before the lower Court are not sustainable. Hence, the Revision petitions preferred by the

petitioner/decree holder are also not maintainable. Accordingly, both the revisions are dismissed. No costs.