Neyyoor Home Church vs Raman

M. Duraiswamy, J.—Challenging the fair and final order passed in E.A. No.60 of 2009 in E.P. No.10 of 2000 in O.S. No.175 of 1981 on the file of the Court of the Principal District Munsif-cum-Judicial Magistrate, Eraniel, Kanyakumari District, the decree holders have filed the above Civil Revision Petition.

Heard the learned Counsel for the petitioners and the learned Counsel for the respondent.

The decree holders filed O.S. No.175 of 1981 for declaration and recovery of possession. Pursuant to the decree passed in the suit, the decree holders filed an execution petition in E.P. No.10 of 2000 to execute the decree. Since the decree holders remained absent before the execution Court, the execution Court dismissed the execution petition for non-prosecution. Thereafter the decree holders filed an application in E.A. No.60 of 2009 to condone the delay of 62 days in filing a petition to restore the execution petition, which was dismissed for nonprosecution on 17.03.2009. In the affidavit filed in support of the application, the decree holders have stated that their Counsel Mr.K.V. Chandrasekaran had collapsed and he was hospitalised during the relevant period and he was undergoing medical treatment for his illness. Further they have stated that they came to know about the dismissal of the execution petition only on 30.05.2009 and hence there is a delay of 62 days in filing the petition to restore the execution petition.

The said application was opposed by the judgment debtor stating that the present application is not maintainable and that the execution Court has no power to condone the delay. The execution Court taking into consideration the case of both parties, dismissed the application as not maintainable stating that for filing application under Order 21 Rule 106 of the Code of Civil Procedure, the decree holders should have filed an application within 30 days and that the execution Court has no jurisdiction to condone the delay in filing an application under Order 21 Rule 106 of the Code of Civil Procedure.

The said finding of the execution Court cannot stand for the reason that on 27.02.1992, there was Madras High Court amendment in respect of Order 21 Rule 105(3) of the Code of Civil Procedure, wherein it has been stated as follows:

"Provided that an application may be admitted after the said period of thirty days if the applicant satisfies the Court that he had sufficient cause for not making the application within such period"

Further Sub-rule 4 was also amended as follows:

"The provisions of section 5 of the Limitation Act, 1908 shall apply to applications under sub-rule (1)".

As per the amended provisions of Order 21 Rule 105 of the Code of Civil Procedure, this Court in N. Rajendran Vs. Shriram Chits Tamil Nadu Pvt. Ltd., , held that in an application filed to set aside the exparte order in execution petition, the delay can be condoned as per the provisions of Sub-rule (3) to Rule 105. Therefore, the amendment provisions of order 21, Rule 105 Sub-rule (3) of the Code of Civil Procedure is very clear that the delay can be condoned if sufficient cause was shown for condonation of the delay. The judgment reported in N. Rajendran Vs. Shriram Chits Tamil Nadu Pvt. Ltd., , squarely applies to the facts and circumstances of the present case.

In these circumstances, the fair and final order passed by the execution Court in dismissing the application is not maintainable and are liable to be set aside. Accordingly, the same are set aside. The application in E.A. No.60 of 2009 shall stand allowed and the execution petition in E.P. No.10 of 2000, on the file of the Principal District Munsif-cum-Judicial Magistrate Court, Eranial is restored to file, on condition the decree holders paying a sum of Rs.1000/- to the respondent/judgment debtor within a period of two weeks from the date of receipt of a copy of this order. It is made clear that the revision petitioners/decree holders shall pay the said amount of Rs.1,000/-(Rupees One Thousand Only) to the counsel appearing for the respondents in this Civil Revision Petition before this Court, within the prescribed period, failing which, the Civil Revision Petition shall stand dismissed automatically.

With the above observations, the Civil Revision Petition is allowed. Consequently, the connected Miscellaneous Petition is closed. There shall be no order as to costs.