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Judgment
C.S. Karnan, J.—The civil revision petitioner herein is the applicant in E.A. No. 166 of 2009, judgment debtor in E.P. No. 77 of 2007 and
defendant in O.S. No. 686 of 1970, on the file of the District Munsif Court, Poonamallee, Thiruvallur District.
The civil revision petitioner has filed an execution application No. 166 of 2009 praying to set aside the ex-parte order of removal of obstruction,
dated 30.04.2009, under Order No. 41, Rule 5 of the Civil Procedure Code. In the said application, the revision petitioner has inter-alia stated
that for non filing of counter statement in E.P. No. 77 of 2007, was said ex-parte on 30.04.2009. This fact known to the revision petitioner on
01.06.2007, since the matter was reversed to the Lok Adalat for amicable settlement.
The counter statement filed by the respondent/plaintiff states that the revision petitioner''s counsel sought time before the E.P. Court for filing his
counter statement. Hence, the Court has granted sufficient time on several occasions. But, he did not file the counter statement. The respondent
further stated that the suit was initiated in the year 1970, after contest the decree was confirmed by the Courts and executed the said decree. The
execution order passed on 30.04.2009, but the set aside application was filed on 02.06.2009, but the application has to be filed on 01.06.2009,
for one day''s delay. In the absence of the condone delay petition the set aside application has been filed and as such, the petition is not
maintainable. Further, the respondent has stated in his counter that it is not an exparte order, but only a contested decree and only that decree had
been executed, that too also only after a period of 40 years. Hence, the respondent has prayed for dismissal of the petition in E.A. No. 166 of
2009 in E.P. No. 77 of 2007.
The learned District Munsif Judge, Poonamallee in his order dated 24.07.2009, passed in E.A. No. 166 of 2009, in E.P. No. 77 of 2007 has
observed that the suit has been filed in the year 1970 seeking removal, of constructions put up by the judgment debtor. The suit has been decreed
on 09.01.1973. The judgment debtor has preferred first appeal in A.S. No. 114 of 1973. The same was dismissed on 29.07.2005. Subsequently,
the judgment debtor had filed the second appeal in S.A. No. 700 of 1976, which had also been dismissed on 19.09.1979. Thereafter, the
judgment debtor had filed O.S. No. 87 of 1983, which had also been decreed against him. Finally, the decree holder had filed the E.P. No. 77 of
2007. The judgment debtor entered appearance on 06.10.2007. For filing counter statement, the E.P. proceedings was adjourned from time to
time. While so, with both parities consent, the matter was referred to the Lok Adalat. The matter had also not been settled before the Lok Adalat.
Again, the matter has been remitted to the execution Court on 15.04.2009. This Court had taken up the case on 30.04.2009 and passed orders
for eviction.
Aggreived by the said order passed in E.A. No. 166 of 2009 by the learned District Munsif in E.P. No. 77 of 2007, dated 24.07.2009, the
present civil revision petition has been preferred by the civil revision petitioner/applicant/judgment debtor/defendant.
Learned Counsel appearing for the civil revision petitioner argued that the Lower Court failed to note that the matter was referred to Lok Adalat
and due to non co-operation of the plaintiff, it had failed. The revision petitioner has been informed that notice would be given to his counsel or to
him regarding the date of next hearing before the Court, but without notice to him, the matter was called on 30.04.2009 and orders were passed
on the ground that the counter was not filed and the E.P. Ordered. It has been submitted that the revision petitioner came to know about the order
dated 30.04.2009 only on the reopening date and after verification of the ''A'' diary. Hence, the revision petitioner has filed the petition on the next
day along with the counter. The petitioner has taken only one day to file the petition and the reasons for the delay in filing the petition has also been
explained.
As such, it was contended that the Court below had failed to take note of the petitioner''s objection and the counter given by him and had
erroneously passed an order dismissing the E.A.
It has been contended that without giving him an opportunity, the matter was called in his absence and the exparte order was passed by the
Court below on the reason of counter was not filed and E.P. is ordered. The learned Counsel for the petitioner has contended that no prejudice
will be caused to the respondent, if the petitioner''s counter filed along with his petition is heard and the matter decided on merits. But, on the
contrary if this not done, the petitioner will be put to great hardship.
As such, it has been prayed by the learned Counsel appearing for the revision petitioner to set aside the order of the lower Court made in E.A.
No. 166 of 2009 in E.P. No. 77 of 2007 in O.S. No. 686 of 1970 on the file of the District Munsif Court, dated 24.07.2009 and pass such other
or further orders as is necessary.
In support of his contentions, the learned Counsel appearing for the civil revision petitioner has cited the following Judgments made in (2008) 4
MLJ 1284 (Mad-NOC) High Court of Madras, Indira Iron and Steel Works and Ors. v. Age Impex International Inc. and Ors., the relevant head
notes of which are as follows:
Restoration of suit - Condonation of delay - Suit in question dismissed for default - Application for restoration of suit - Impugned order dismissing
same - Appeal - Pragmatic approach to be made overriding technical considerations - There is sufficient cause for condoning delay in filing
application - Reasons attributed by appellant/applicants sufficient for restoration of suit in question - Impugned order set aside.
2008 (1) CTC 785 High Court of Madras, Ravi Enterprises v. Indian Bank, the relevant head notes of which are as follows:
Limitation Act, 1963 (36 of 1963), Section 5 - Condonation of delay - Principles governing - Court has to adopt pragmatic approach in matters
regarding condonation of delay and deliver substantial justice overriding technical consideration - length of delay is immaterial - Bona fides of party
cannot be held against him merely because Petition filed by him to set aside ex parte order was dismissed by default and Application to restore
same was also dismissed - Delay condoned.
Learned Counsel appearing for the first respondent argued that the revision petitioner has entered appearance in the E.P. Proceedings. As
such, one more notice is not necessary to be sent to the revision petitioner after the matter has been remitted back to the Court from the Lok
Adalat. The revision petitioner is well award that the matter was referred to the Lok Adalat. The learned Counsel further argued that the case was
initiated in the year 1970 and that the decree holder is an aged person. Further, the case has been disposed on merits. The revision petitioner has
also been given ample opportunities to put forward his views before the E.P. Court also. There is no additional point or clarification needed in the
present case. As such, the order passed by the learned District Munsif is fair. Supporting his case, he has cited the following Judgments made in
M. Ponnupandian Vs. Selvabakiyam and Others, , the relevant head notes of which are as follows:
Civil P.C. (5 of 1908), Order 21, Rule 106 - Limitation Act (36 of 1963), Section 5 - Order passed ex parte under Order 21, Rule 106 -
Application to set it aside - Section 5 of Limitation Act not applicable.
Section 5 of the Limitation Act, is not applicable to the petition filed for setting aside the orders passed ex parte under Order 21, Rule 106 and the
provision contained in Sub-rule (4) of Rule 105 (Madras Amendment) is no longer in force.
Damodaran Pillai and Others Vs. South Indian Bank Ltd., ., the relevant head notes of which are as follows:
(A) Civil P.C. (5 of 1908), Order 21, Rule 106(3) - Restoration of execution application - Limitation - Starting point - Would be date of order
dismissing execution application and not knowledge thereabout.
C.R.P. No. 1033 of 2002, D/- 22-7-2003 (Ker), Reversed.
When an application is dismissed for default in terms of Order 21 Rule 105, the starting period of limitation for filing of a restoration application
would be the date of order and not the knowledge thereabout. As such applicant is 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 ex parte order was passed 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, the application for restoration thereof must be filed only within a period of thirty days from
the date of said order and not thereafter. In that view of the matter, the date when the decree holder acquired the knowledge of the order of
dismissal of the execution petition was, therefore, wholly irrelevant. C.R.P. No. 1033 of 2002, D/- 22-7-2003 (Ker), Reversed.
(B) Civil P.C. (5 of 1908), Order 21, Section 151; Limitation Act (36 of 1963, Section 5 - Proceedings arising under Order 21 - Condonation of
delay - Application of Section 5 of Limitation Act is expressly excluded - Thus in such proceedings inherent powers of Court cannot be invoked.
The Civil Court in absence of any express power cannot condone the delay. For the purpose of condonation of delay in absence of applicability of
the provisions of Section 5 of the Limitation Act, the Court cannot invoke its inherent power. The application of Section 5 of limitation Act has
been excluded in proceedings under Order 21 of the Code. Thus an application u/s 5 of the Limitation Act is not maintainable in a proceeding
arising under Order 21 of the Code. A fortiori for the said purpose, inherent power of the Court cannot be invoked.
1987/C.R.P. 286 of 1985 Madras High Court, N.M. Natarajan v. Deivayanai Ammal and Ors., the relevant head notes of which are as follows:
C.P.C., Order 21, Rule 90, and Rule 105(4), framed by the Madras High Court in exercise of the powers u/s 122, and which came into force on
4.9.1945, and Rule 90 and 92, C.P.C. Amending Act 104 of 1976, and Limitation Act (1963), Sections 5 and 22 - Dismissal for default of an
application for setting aside a court sale - Application for restoration with petition to excuse delay in filing u/s 5 of Limitation Act, held, not
maintainable - Madras Amendment 10 Rule 105(4) of Order 21, C.P.C., no longer in force after the enactment of Amending Act 104 of 1976 -
Change in position after enactment of Section 5 of Limitation Act, 1908 - Overriding effect of 1963 Act - Invoking of Section 5 , Limitation Act,
for setting aside ex parte orders passed under Order 21, Rule 105 not possible - 92 L.W. 662 (V. Balasubramaniam, J.) Overruled, and 96 L.W.
542 (Mohan, J.) Approved.
1984, L.W. 214 Madras High Court, Ayappa Naicker v. Subbammal and Anr., the Hon''ble Madras High Court has held as follows:
It is common case between the parties that it is only Rule 105 of Order 21, CPC (Madras Amendment) which has been mistakenly quoted as Rule
106 of Order 21, CPC (Central Code) in the order of the Courts below. It is in contradistinction to Rule 105 that under Rule 103 of Order 21, of
the Madras Amendment Sub-rule (4) states that the provisions of Section 5 of the Limitation Act, 1908 shall apply to applications under sub-rule.
The amendment was prior to the Limitation Act of 1973.
With reference to applications under Order 21, CPC there is the statutory bar in applying Section 5 of the Limitation Act. It may also be relevant
to note Section 32 of the Limitation Act before it was repealed by Central Act LVI of 1974. It is stated under that section that the Indian
Limitation Act, 1908, is hereby repealed. Therefore, after 1st January, 1964 Sub-rule (4) of Rule 105 of Order 21, CPC could no longer be
applied, because of the express language of Section 5 of the Limitation Act. That is why the Central Code in Rule 105 of Order 21, CPC did not
made any reference to the same saying that section of the Limitation Act would be applicable.
The question of invoking inherent powers u/s 151, CPC does not arise in this case. That is because of the specific provisions contained under Rule
106 of Order 21, Civil Procedure Code. If, therefore, there is repugnancy between the Central Code under Rule 106 and the Madras Amendment
under Sub-rule (4) of Rule 105 of Order 21 it is Section 97 of the CPC in relation to repeal and savings that would apply. That says that any
amendment made or any provision inserted in the principal Act by a State Legislature or a High Court before the commencement of this Act shall
except in so far as such amendment of provision is consistent with the provisions of the principal Act as amended by this Act, shall stand repealed.
The principal Act, namely Central Code, does not made Section 5 of the Limitation Act applicable, while the Madras Amendment does make it
applicable. Therefore to that extent there is repugnancy.
There is yet another way of looking at the matter. Sub-rule (4) of Rule 105 of Order 21, Civil Procedure (Madras Amendment) makes a reference
only to the Indian Limitation Act, 1908. After it is repealed there is no possibility of applying the same.
After considering the facts and circumstances of the case, scrutiny of findings of the learned District Munsif, Poonamallee, arguments advanced
by the learned Counsel appearing on either side and the citations submitted in support thereof, the Court is of the view that the Order passed in
E.A. No. 166 of 2009 in E.P. No. 77 of 2007 in O.S. No. 686 of 1970, dated 24.07.2009 is correct for the following reasons:
In the E.P. Proceedings, the revision petitioner entered appearance on 06.10.2007. From this date onwards, he is well aware of the
proceedings and as such the order passed by the District Munsif cannot be considered as an ex-parte order.
The Judgment and decree has been confirmed by this Hon''ble Court in the Second Appeal No. 700 of 1976, the same was executed by the
executing Court i.e. the District Munsif Court, Poonamallee. The revision petitioner has not pointed out any error or mode of execution of the
decree.
The revision petitioner has not pointed out or stated the irreparable loss or hardship caused to him in the order passed in E.A. No. 166 of 2009
in E.P. No. 77 of 2009.
Considering that the decree had been passed for this suit initiated in the year 1970, after a period of 40 years, this Court is of the view that the
respondent/plaintiff had been given the legal remedy after a long legal battle. Hence, the Court considering the facts and circumstances prevailing in
the cause feels that there is no need to interfere in the said impugned order.
In the result, the above Civil Revision Petition is dismissed and the Order dated 24.07.2009 in E.A. No. 166 of 2009 in E.P. No. 77 of 2007
in O.S. No. 686 of 1970, passed by the District Munsif Court, Poonamallee, Thiruvallur District, is confirmed. Consequently, connected
miscellaneous petition is closed. There shall be no order as to costs.