R. Parasuraman vs Jayalakshmi Ammal and others

Pratap Singh, J.—These revision petitions are directed against the orders passed in F.A. No. 43 of 1986 in E.A. No. 49/84 in E.P. No. 4

of 1983 in O.S. No. 512/1979 on the file of Sub Court, Vellore and E.A. No. 46 of 1986 in F.A. No. 51 of 1984 in E.P. No. 5 of 1983 in O.S.

No. 516 of 1979 on the file of Sub Court Vellore, respectively.

The Short facts are the Revision petitioner has field E.A. No. 45 of 1986 u/s 5 of the Limitation Act praying to condone the delay of three days

in filing the Petition to restore E.A. No. 49 of 1984 which was dismissed for default. That was opposed by the respondents on the ground that

there is no provision to execute the delay and Section 5 of the Limitation Act is not applicable to proceedings in execution. After enquiry, the

learned Subordinate Judge upheld the objection and dismissed the application. Aggrieved by that order, C.R.P. No. 3216 of 1987 is filed.

The revision petitioner filed E.A. No. 46 of 1986 u/s 5 of the Limitation Act to condone the delay of three days in filing the petition to set aside

the dismissal order passed in E.A. No. 51 of 1984. Dated 19-3-1986. That was resisted by the respondents on the ground that the petition is not

maintainable, that this is the third petition for restoration and that it is an abuse of presence of Court. After enquiry, the learned Subordinate Judge

had upheld the objection holding that the petition is not maintainable and has dismissed the application. Aggrieved by the same, C.R.P. No. 3217

of 1986 is filed.

4-5. Mr. M.N. Muthukumaran, learned counsel for the petitioner, would submit that though Section 5 of the new Limitation Act is not applicable

to a proceeding in execution, as per Order XXI, Rule 105(4) of the Code of Civil Procedure, framed by the Madras High Court, the provisions of

Section 5 of the Limitation Act, 1908 shall apply to applications under sub-rule (1) of Rule 105 and as such, the applications are maintainable and

the Court below was wrong in holding that the applications were not maintainable.

I have carefully considered the submissions made by the learned counsel for the Petitioner. To consider the submissions of the learned counsel,

Order XXI, Rule (4) of C.P.C. framed by the Madras High Court amendment, needs re-production and it reads as follows:--

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

In Subramania Mudali v. Srinivasa Pillai 1979 2 Mad LJ 373 : AIR 1980 NOC 61 a similar question came up for consideration before V.

Balasubramanyan, J. In paragraph 12, the learned Judge has held as follows :--

I am, therefore, quite clear in my mind that the reference in Order 21, Rule 105(4) to Section 5 of the Limitation Act continues to refer strictly and

literally, to Section 5 of the old Act, 1908 notwithstanding its repeal and re-enactment in the present Limitation Act, 1963. The result is that the

execution court in this case is quite right in entertaining the auction purchaser''s application for condonation of the delay in seeking to set aside the

dismissal for default of the application which he filed under Order 21, Rule 105.

In paragraph 16, the learned Judge has held as follows:

The arrangement was that there is nothing in Rule 105(4) which ""expressly excluded"", Section 5 of the new Limitation Act from applying. In my

view, this is not the way to construe the words in question. The phrase not expressly excluded"" does not mean or imply that exclusion must be in

express terms. In my view, the phrase ""not expressly excluded"" would take note of express exclusion as well as express sub-inclusion. In Order

21, Rule 105, this Court framed the rule expressly referring to Section 5 of the Indian Limitation Act, 1908, This express mention of Section 5 of

the old Act amounted to an express non-inclusion of any subsequent amendment inconsistent with its original meaning and effect. In this view,

therefore, I am satisfied that Section 5 of the new Limitation Act, 1963 cannot be invoked in the present case.

With respect, I am in total agreement with the view expressed by the learned Judge in the abovesaid ruling. In view of the same, the finding of the

learned Subordinate Judge that the two applications are (not?) maintainable for the reason that Section 5 of the new Limitation Act is not

applicable to proceedings in execution, cannot be sustained. So, the impugned orders passed in E.A. Nos. 45 and 46 of 1986 are liable to be set

aside and the matters are to be necessarily remitted back to the Court below for consideration on merits, whether valid explanation for the delay of

three days is given or not.

In view of the above, both these Revision petitioners, are allowed and the orders passed in E.A. Nos. 43 and 46 of 1986 are set aside and both

the matters are remitted back to the Court below for deciding on merits whet her the delay of three days in each case has to be condoned or not.

The learned Subordinate Judge, Vellore, shall restore E.A. Nos. 43 and 46 of 1986 and dispose them of on merits in the light of the observations

made in this order and according to law within six (6) weeks from the date of receipt of a copy of this order. There will be no order as to costs in

both the revision petitions.

Petition allowed.