N.M. Natarajan vs Deivayanai Ammal and others

Sivasubramaniam, J.—This revision is directed against an order in O.E.A. 912 of 1983 in O.S. 67 of 1979 on the file of the District Munsif of Ranipet. The first respondent herein filed an application under O. 21, R. 90, C P.C., for setting aside the Court sale held in O.E.P. 106 of 1985. In the said sale, the petitioner herein became the successful bidder of one of the items of properties brought to sale. When the petition to set aside the sale was called on 27-9-1983, there was no representation and the judgment debtor and her counsel were absent and, therefore the petition was dismissed for default. She filed an application to restore the application dismissed for default on 27-9-1983, and since there was a delay of 28 days in filing the said application, she filed another application in O.E.A. 912 of 1983 under S. 5 of the Limitation Act, to excuse the delay of 28 days in filing the application to restore the earlier petition dismissed for default. According to the judgment debtor, she was laid up with jaundice in the month of July 1983, and so she could not attend the Court. The auction-purchaser-petitioner herein resisted the application contending that the provisions of S. 5 of the Limitation Act are not applicable for execution proceedings. However, the lower Court, relying on the decision of this Court in Subramania Mudali v. Srinivasa Pillai 92 L.W. 662=l979 2 M.L.J. 373 allowed the application. Aggrieved against the said order, the court auction purchaser has filed the above revision petition.

The important question that arises for consideration in this revision petition is about the applicability of Madras R. 105 (4) of O. 21, C.P.C., framed by this Court in the exercise of its powers under S. 122 of the Code, which came into effect on 4-9-1945, applying the provisions of S. 5 of the Limitation Act, 1908 to applications under O. 21, R. 105 (1) of the Code. When the above civil revision petition came before Kader, J., the learned Judge referred the matter to a Bench on the ground of conflict of decisions between the judgment of Mohan, J., in Ayyappa Naicker v. Subbammal and another, and the judgment of Balasubrahmanyan, J. in Subramania Mudali v. Srinivasa Pillai and another 92 L.W. 662=l979 2 M.L.J. 373, regarding the question of the application of the provisions of S. 5 of the Limitation Act, 1963, to applications under O. 21 of the CP. Code. Therefore, the matter comes before us on reference.

Mr. A. Seshan, learned counsel appearing for the petitioner, submits that the executing Court had already passed an order confirming the sale and having regard to the mandatory provisions of O. 21, R. 92, C.P.C. the Court below should have held that no further application is contemplated. According to him, under O. 21, R. 92, sub-Cl. (3) even a suit to set aside an order made under this rule is prohibited and that the court has no jurisdiction to restore the application under O. 21, R. 90, C.P.C., after the court has passed an order under O. 21, R. 92, confirming the sale. It is further contended that O. 21, R. 105(4) (Madras Amendment) is not valid in view of the amendment of the CPC by Act 104 of 1976 and in view of S. 5 of the Limitation Act, 1963. He relied on the decision of Mohan, J. in Ayyappa Naicker v. Subbammal 1934 1 M.L.J. 214. wherein the learned Judge held that because of the specific provision contained under R. 106 of O. 21, there is repugnancy between the Central Code under R. 106 and the Madras Amendment under sub-R. (4) of R. 105 of O. 21, and that as per S. 97 of the amended Act, in relation to repeal and savings, any amendment made or any provision inserted in the principal Act by a State Legislature or a High Court before the commencement of this Code shall except in so far as such amendment or provision is consistent with the provisions of the principal Act, as amended, stand repealed. The learned Judge further held that sub-R. (4) of R. 105 of O. 21, C.P.C. (Madras amendment) makes a reference only to the Indian Limitation Act 1908, and after it is repealed, there is no possibility of applying the same.

On the other hand, Miss Kusum Kumari, learned counsel appearing for the respondent relied on the decision of Balasubrahmanyan, J. in G. Subramania Mudali Vs. Srinivasa Pillai and Another, , wherein the learned Judge held that the reference to O. 21, R. 105(4) C.P.C (Madras Amendment) to S.5 of the Limitation Act, continues to refer, strictly and literally, to S. 5 of the old Limitation Act, 1908, and in O. 21, R. 105, C.P.C, the Madras High Court framed the rule expressly referring to S. 5 of the Indian Limitation Act, 1908 and this express mention of S. 5 of the old Act amounted to an express non in elusion of any subsequent amendment inconsistent with its original meaning and effect. On this view of the matter, the learned judge held that S. 5 of the new Limitation Act 1983, could not be invoked in a case like this. According to the learned Judge, the executing court has got jurisdiction to entertain an application for coadunation of delay in seeking to set aside the dismissal for default of an application which was filed under the provisions of O. 21, C.P.C.

Before proceeding to solve the conflict of decisions above referred to, let us have a look at the relevant provisions in the Civil Procedure Code. In the year 1945 this Court introduced sub-S. (4) of R. 105 of O. 21, C.P.C. The rule, as it stood before the amended Code, reads as follows-

(1) The applicant against whom an order is made under sub-R. (2) of preceding rule or a respondent against whom an order is passed experts under sub-R. (3) of the preceding rule or under sub-R. (1) of R. 23 of this Order, may apply to the court to set aside 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 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-R. (1) unless notice of the application has been served on the opposite party (3) An application under sub-R. (1) shall be made within 30 days of the date of the order or, where in the case of an ex parte, order the notice was not duly served, the date when applicant had knowledge of the order; (4) The provisions of S. 5 of of the Indian (sic) lion Act 1908 shall apply to application under sub-R. (1). As per Act 104 of 1976, the Civil Proceed are Code was amended. The corresponding provisions contained in O. 21, R. 105 C.P.C have now been incorporated in O. 21, R. 106. C.P.R which reads as follows:

(1) The Applicant, against whom an order is made under sub-R. (2) of R. 105 or the opposite party against whom an order is passed experts under sub-R. (3) of that rule or under sub-R. (1) of R. 23 any apply to the court to set aside the order, and the 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 on such terms as to costs, or otherwise as it think his and shall appoint a day for further hearing of the application; (2) No order shall be made on an application under sub-R. (1) unless notice of the application been served on the other party; (3) An application under sub-R. (1) shall be made within thirty days from the date of the order or where, in the case of an experts order, the notice was not duly served, within thirty days from the date when the applicant had knowledge of the order.

The important question to be considered in this revision is whether sub-R. (4) of R. 105 should be treated as having been repealed by the said amended Act of Parliament.

The CPC was expensively amended by Act 104 of 1976 which shall hereinafter be referred to as the Amending Act. S. 97(1) of the Amending Act reads as follows -

Any amendment made, or any provision (sic) ed in the Principal Act by a State Legislature (sic) High Court before the commencement of tins Act shall, except in so far as such amendment or scion is consistent with the provisions of the Principal Act as amended by this Act, stand repealed. The above provision is however subject of sub-S. (2) of S. 97 of the Amending Act. (sic) provides that notwithstanding that the (sic) scions of the Amending Act have come (sic) force or the repeal under sub-S. (1) of S. 97 of the Amending Act has taken effect, and without prejudice to the generality of the provisions of S. 6 of the General Clauses Act, 1897, the provisions in clauses (i) to (sb) of that sub-section would prevail. Sub-S. (3) of S. 97 of the Amending Act provides that save as otherwise provided in sub-S. (2) the provisions of the Principal Act, as amended by the Amending Act, shall apply to every suit, proceeding, appeal or application pending at the commencement of the Amending Act or instituted or filed after such commencement, notwithstanding the fact that the right, or cause of action, in pursuance of which such suit, proceeding, appeal or application is instituted or filed, had been acquired or had accrued before such commencement. It is seen that by the Amending Act, several amendments were carried out to the Code on the basis of the recommendations of the Indian Law Commission. At that time, several amendments in the Code were in force in different States in India. As the subject of civil procedure is placed in List III of the Seventh Schedule to the Constitution, the State Legislature and the High Courts are empowered to make rules regulating the procedure of civil Courts subject to their superintendence as well as rules regulating their own procedure. The only restriction was that such rules must not be inconsistent with the body of the Code, but they can amend or add to rules in the First Schedule to the Code. When the Amending Act was introduced making several changes in the Code, the Parliament in its wisdom enacted S. 97 providing for repeals and savings and the effect of the changes on pending proceedings.

We have already noticed that there was a specific provision in sub-R. (4) of R. 105 specifically providing for the application of the provisions of S. 5 of the Indian Limitation Act, 1908 and, therefore, there was no difficulty in applying the said provisions before the amended Act came into force. We find that there is no corresponding provision in the amended Act and R. 106 of O. 21 is silent about its applicability of the provisions of S. 5 of the Limitation Act. But, what is sought to be argued now by the respondent is that even after the aforesaid amendment effected to O. 21, R. 105 C.P.C., by the amending Act, the Madras Amendment still continues to be on the Statute book and it would undoubtedly enable the Court to invoke the provisions of S. 5 of the Limitation Act. This submission proceeds on the basis that the said Madras Amendment still continues to be a part of O. 21, R. 105, C.P.C. We are unable to appreciate the said contention. We have already seen that S. 97 (1) of the Amending Act has taken note of several local amendments made in several States before the commencement of the Amending Act and states that any such amendment shall, except in so far as such amendment or provision is consistent with the provisions of the Code as amended by the Amending Act, stand repealed. It means that the effect of S. 97 of Act 104 of 1976 is to repeal the above mentioned Madras Amendment unless it is found to be consistent with O. 21, R. 106, C.P.C. Therefore, we have to see whether the provisions under sub-R. (4) of R. 105 (Madras Amendment) is consistent with the present R. 106 introduced under Act 104 of 1976, in terms of S. 97 of the Act. One of the methods adopted for finding out whether there is such inconsistency or not is to find out whether the later law passed under Act 104 of 1976 is intended by the Parliament to govern the entire situation. To put it in other words, if O. 22, R. 106, as amended by the Parliament is taken to be exhaustive on the topic relating to applicability of S. 5 of the Indian Limitation Act, it must be held that the Parliament did not intend that there should be any taw on the same topic by any other organ of the State. Of course, it is open to such local authorities to enact a law in addition to the Parliamentary law provided the former is consistent with the Act of the Parliament. While considering the effect of S. 97, of the Amending Act, the Supreme Court in Ganpat Giri v. II Addl. Dt. Judge 99 LAV. 481 (SC.), held as follows:

It means that any local amendment of the Code which is inconsistent with the Code as amended by the Amending Act, would cease to be operative on the commencement of the Amending Act, i.e., on 1st February 1977. The repealing provision in S. 9(i) is not confined in its operation to the provisions of the Code including the Orders and Rules in the First Schedule which are actually amended by the Amending Act. The object of S. 97 of the Amending Act appears to be that on and after February 1, 1977 throughout India wherever the Code was in force there should be some procedural law in operation in all the civil Courts, subject, of course to any future local amendment that may be made either by the State Legislature or by the High Court, as the case may be, in accordance with law. Until such amendment is made, the Code as amended by the Amending Act alone should govern the procedure in civil courts which are governed by Code. We are emphasizing this in view of the decision of the Allahabad High Court which is now under appeal before us.

As we have already noticed, sub-R. (1) of 105 (Madras Amendment) was introduced prior to the Limitation Act of 1963. It is to be noted that the said sub-rule specifically refers to the Limitation Act of 1908. As long as the old Limitation Act and the old CPC were in force, there was no difficulty in applying the provisions of S. 5 of the old Limitation Act. But now the position is clearly changed, S. 5 of the present Limitation Act, 1963, reads as follows-

Extension of prescribed period in certain cases Any appeal or any application, other than an application, under any of the provisions of O. 21 of the Code of Civil Procedure, 1908 (5 of 1908) may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not referring the appeal or making the application within such period. Explanation: The 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.

Therefore, with reference to applications under O. 21, C.P.C, there is a statutory bar in applying the provisions of S. 5 of the Indian Limitation Act. It is also seen that S. 32 of the new Limitation Act says that the Indian Limitation Act, 1908 is hereby repealed. The new Limitation Act was brought into force by Act 36 of 1963. This aspect was taken note of by the Parliament at the time when the Amending Act 104 of 1976 was passed. That is the reason why R. 106 of O. 21, C.P.C, did not make any reference as to the applicability of S. 5 of the Limitation Act. The omission in the new CPC relating to the applicability of S. 5 of the Limitation Act is patently express, and therefore, it has to be held that there is inconsistency between these two provisions. The test to find out whether there is any inconsistency between the two provisions of law is explained by Dixon, J. in one of the Australian cases followed in Tumati Rangayya Vs. The State of Andhra Pradesh and Others, ), in the following terms-

When a State Law, if valid, would alter, impair or detract from the operation of a law of the Commonwealth Parliament, them to that extent, it is invalid.

In view of the overriding effect of the provisions contained in the Amending Act and in S. 5 of the new Limitation Act, it has to he concluded that there is inconsistency between the similar provisions and, therefore, to the extent of the omission, the old Act stares'' repealed, with the result that S. 5 of the Limitation Act cannot be now invoked with regard to the petition filed for setting aside the expiate orders made under O. 21, R. 105, C.P.C. as held by the Andhra Pradesh High Court. in Mupparaju Sreeramulu v. Pidikiti Kotiah 1980 An.WR. 174.

Lastly, learned counsel for the respondent submitted that even if the provision, of S. 5 of the Limitation Act are not applicable to a case of this nature, the Court has got jurisdiction to excuse the delay under S. 14B, C.P.C. which reads as follows-

Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed. by this Code, the Court may, in its discretion, four time to time, enlarge such period, even though the period originally fixed or granted may have expired. We are unable to agree with the said contentions. The language of the section itself is clear that the Court has got jurisdiction to enlarge time where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Code. The Court cannot exercise its powers under the provision to excuse the delay in filing an application under O. 21, R. 106, C.P.C, since the period is fixed by the Statute.

In view of the conclusions arrived by us as above, we hold that the decision of Mohan, J. in Ayyappa Naicker v. Subbammzl lays down the correct law on this subject and the contrary decision of Balasubruhmanyan, J. in Subramania Mudali v. Srinivasa Pillai, is no longer good law. In the result, we hold that S. 5 of the Limitation Act, 1963, is not applicable to ''a petition filed for setting aside the orders passed experts under R. 106 of O. 21, C.P.C, and the provision contained in sub-R. (4) of R. 105 (Madras Amendment) is no longer in force. Accordingly, the civil revision petition is allowed. There will be no order as to costs.