V. Mani vs T. Ganesan

S. Palanivelu, J.—The respondent is plaintiff in O.S. No. 138 of 1982 on the file of the District Munsif Court, Dindigul. He filed the suit for

specific performance of contract against the petitioner''s father by name Velan and obtained decree. The respondent filed E.P. No. 8 of 2005 on

the file of the District Munsif-Cum-Judicial Magistrate Court, Vedasandur for delivery of the property in pursuance of the decree passed in the suit.

Pending the enquiry in the execution proceedings, this petitioner, son of the defendant Velan, filed an application in E.A. No. 14 of 2006 under

Order 21, Rules 97, 99 and 101 C.P.C. praying the Court to declare that the decree passed in O.S. No. 138 of 1982 is null and void, the

execution proceedings taken up by the plaintiff in E.P. No. 6 of 2001 for execution of sale deed against his father, is void ab initio, to declare that

the properties belong to him and also for a permanent injunction restraining the plaintiff from interfering with his enjoyment of the properties

mentioned in O.S. No. 138 of 1982.

When the hearing in E.A. No. 14 of 2006 was posted on 16.03.2006, the plaintiff who had to appear, however, he did not appear and hence,

the Court set him ex parte and the second respondent in the E.P., the defendant Velan, expressed that the petition in E.A. No. 14 of 2006 may be

allowed and hence, the said E.A. was allowed on 16.03.2006. Thereafter, the respondent/plaintiff filed an application in E.A. No. 52 of 2006 to

set aside the ex parte decree passed on him on 16.03.2006. The said petition was filed on 12.06.2006. In spite of resistance by the petitioner

herein, the above-said petition was allowed. Challenging the order passed by the executing Court setting aside the ex parte order against this

respondent, the petitioner is before this Court.

In the affidavit, the respondent herein has affirmed that on 16.03.2006, E.A. No. 14 of 2006 was posted for hearing, for which he had to

appear but he was unable to attend the Court since he was affected by Typhoidal Fever, that on the later date, he came to the Court and enquired

the Court staff, informed him that he was set ex parte on 16.03.2006 and that his absence was neither wilful nor wanton and it was by act of God.

Hence, it is prayed that the ex parte order may be set aside.

In the counter filed by this petitioner before the executing Court, it is stated that the allegations found in the affidavit are incorrect and the petition

is not maintainable in law and on fact and that it is hopelessly barred by Limitation and entertaining the petition itself was against law. It is further

stated that Section 5 of Limitation Act will not apply for application under Order 21, Rule 106 of C.P.C. Hence, the petition has to be dismissed.

The learned District Munsif-Cum-Judicial Magistrate, allowed the application setting aside the ex parte order passed against this respondent by

observing that this respondent''s rights would prejudiced in view of the decree, he obtained in O.S. No. 138 of 1982.

The learned counsel for the petitioner Mr. R. Subramanian, would submit that Section 5 of the Limitation Act is not at all applicable to the

execution proceedings and that the petitioner having failed to adduce adequate reasons in the affidavit for condoning the delay and not mentioned

about the date in which the ex parte orders was passed, the petition is liable to be dismissed.

Conversely, the learned counsel for the respondent Ms. J. Padmavathi Devi, would contend that there is no error or infirmity in the order passed

by the Court below and that the plaintiff, namely, this respondent, should be allowed to enjoy the fruits of the decree passed in the suit.

It is well settled that the petition u/s 5 of the Limitation Act is not at all maintainable in the execution proceedings. Only one exemption is

included in Order 21, Rule 106(3), that is if an application under Sub-rule 1 to Order 21, is made within thirty days from the date of the order, or

where, in the case of an ex parte order, the notice was not duly served, within thirty days from the date when the applicant had knowledge of the

order then he can file an application. The provision is categorical and definite in explaining that any application for setting aside the ex parte order in

any stage of the execution proceedings shall be filed within thirty days from the date of the ex parte order and if the applicant was not served with

the notice in the execution proceedings and thereby he was prevented from appearing before the Court for the hearing, then he is permitted to file

such application, however, within thirty days from the date of his knowledge.

In order to satisfy the above said statutory requirement, the applicant has to strictly establish that the notice was not served upon him in the

execution proceedings and that he had knowledge only on a date within thirty days before the date of filing of the application to set aside the ex

parte order. If such explanation or allegation is not available in the affidavit, then the Court can reject the request of the applicant.

Adverting to the facts of the present case, in the affidavit, the petitioner has mentioned only that he was unable to attend the Court on

16.03.2006. He has neither alleged that he did not receive the summons in the E.A. No. 14 of 2006 nor he had knowledge about the hearing date

only on a particular date and from that date within thirty days he filed this application. In the absence of the explanations or material particulars, in

order to satisfy the statutory requirement, it has to be held that the petition is not sustainable.

The learned counsel for the petitioner, in support of his contention, placed much reliance upon the decision of the Hon''ble Supreme Court of

India reported in Damodaran Pillai and Others Vs. South Indian Bank Ltd., , wherein Their Lordships have held that the applicant having been

aware of the proceedings, he being the petitioner in the application for restoration of execution petition, cannot be permitted to say that he had no

knowledge about the passing of dismissal order and that he had knowledge only on a date and within thirty days from the date he filed an

application for restoration. The operative portion of the decision goes thus:

The learned Judge, however, while arriving at the said finding failed and/or neglected to consider the effect of Sub-rule (3) of Rule 106. A bare

perusal of the aforementioned rule will clearly go to show that when an application is dismissed for default in terms of Sub-rule (2) of Rule 105, the

starting point of limitation for filing of a restoration application would be the date of the order and not the knowledge thereabout. As the 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 under Sub-rule (2) of Rule 105, 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. 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.

He has also garnered support from the Division Bench decision of this Court in 1989 1 LW 178, N.M. Natarajan v. Deivayanai Ammal and

Ors., in which the learned Judges have observed as follows:

Section 5 of the Limitation Act, 1963, is not applicable to a petition filed for setting aside the orders passed ex parte under Rule 106 of Order 21,

C.P.C. and the provision contained in Sub-rule (4) of Rule 105 (Madras Amendment) is no longer in force.

The above-said observation rendered in the case afore-mentioned is squarely applicable to the matter in issue.

Following the above said decision, in a subsequent decision in M. Ponnupandian Vs. Selvabakiyam and Others, , this Court has taken an

identical view that there is no circumstance to take a different view in this matter.

The learned counsel for the petitioner cited 2001 2 L.W. 113, Deep Chand and Ors. v. Mohan Lal, pronounced by the Supreme Court, in

which Their Lordships have dealt with the powers of the executing Court in the matter of executing a decree passed in a suit for specific

performance. She also placed reliance upon a decision of this Court reported in 1997 1 L.W.353, Bank of Madurai Ltd., Madurai by its Branch

Manager v. M. Sundara Mahalingam, wherein the learned Judge has discussed about Article 136, Schedule-I of Limitation Act and the

maintainability of the E.P. before expiry of 12 years. The above-said two decisions cited by the learned counsel for the respondent are not relevant

to the subject matter before this Court presently.

In view of the settled position of law, there is no option except to hold that the order passed by the executing Court, challenged herein is

perverse and legally infirm. It is liable to be set aside and it is accordingly set aside.

In fine, the Civil Revision Petition deserves to be allowed. The respondent is at liberty to move the revision in the suit properties by any mode

known to law.