Veera Boyan vs Ponnusamy Gounder and Others

R. Balasubramanian, J.—The decree-holder in O.S.No. 1192 of 1971 on the file of the District Munsif, Krishnagiri is the revision petitioner.

The respondents in this revision are the judgment-debtors in that suit. In that suit there was a decree for specific performance. To have that decree

executed, the decree-holder filed for execution petition which was numbered as E.P.No. 279 of 1986. Notice was issued to the judgment-debtors

in that execution petition and it underwent a number of adjournments for enquiry. From 2.8.1991 onwards, as I could see from the docket of the

execution petition itself, the hearing underwent a number of adjournments and on these days the court was made to believe that there is a possibility

of settlement. Thus the case came to be called for enquiry or settlement on 8.8.1991, 26.8.1991, 6.9.1991, 17.9.1991, 22.10.1991 and

18.12.1991. On 18.12.1991, it was represented before the court that there was no settlement and therefore the court passed the following order:

No settlement. Execute sale deed by 31.1.1992."" On 31.1.1992 the court directed the decree holder to produce non-judicial stamp papers by

17.2.1992. On 17.2.1992 the learned Judge appeared to be on leave and therefore the case was called on 10.3.1992, on which dated the E.P.

was dismissed for default. To set aside that order the decree holder filed E.A.No. 213 of 1992 u/s 151 of the C.P.C. setting out certain reasons.

This was opposed by the judgment-debtors stating that the order dated 10.3.92 is an order under Order 21, Rule 105 of the C.P.C. and therefore

the application filed after the expiry of 30 days as prescribed under Order 21, Rule 106 of the C.P.C. is definitely barred by limitation. Accepting

this plea the learned trial Judge dismissed the application filed by the decree holder holding that the E.P. was dismissed on 10.3.1992, the present

application having come to be filed on 29.4.1992 is definitely after a period of 30 days and the application u/s 5 of the Limitation Act would not

apply to such a case This order is challenged in this revision by the decree-holder.

I heard Mr. R. Subramanian, learned Counsel appearing for the revision petitioner and Mr. K. Venkataraman learned Counsel appearing for the

respondents. The arguments of the learned Counsel for the revision petitioner is that unless the order dated 10.3.1992 in E.P.No. 279 of 1986 is

brought within the purview of Order 21, Rule 106 of the C.P.C., the period of limitation prescribed under Order 21, Rule 106 of the C.P.C.

would have no application. According to the learned Counsel for the revision petitioner, the hearing and enquiry was over as early as 18.12.1991,

on which date the court directed to execute the sale deed. Therefore when the case was called on subsequent date, it was not called for any

hearing in the execution petition, but it was only with a view to getting the non-judicial stamp papers so that the sale deed could be engrossed on

the same. In support of his contention that unless the order came to be passed on the date of the hearing, the limitation prescribed under Order 21,

Rule 106 of the C.P.C. will not be attracted, the learned Counsel relied upon three judgments namely, Smt. Renu Kumari v. Vishwanath

Chowdhary AIR 1983 Pat. 68, Mustt. Rahima Khatun and Others Vs. On the death of Samser Ali his L. Rs. Mustt. Amrun Nahar and Others,

and Khoobchand Jain v. Kashi Prasad AIR 1986 M.P. 68. As against this, Mr. K. Venkataraman, learned Counsel for the respondents brought

to my notice a judgment of this Court reported in 1989 L.W. 38.

In the light of the submissions made by the learned Counsel on either side, I perused the records as well as the order under challenge. The

judgment relied upon by the learned Counsel for the respondents will only apply to a case where the order in the execution petition came to be

passed under Order 21, Rule 105 of the C.P.C. But in this case that is not the situation. I am in entire agreement with the submission made by the

learned Counsel for the revision petitioner that unless the order dated 10.3.1992 is brought within the purview of Order 21, Rule 105 of the

C.P.C., the limitation prescribed in the succeeding sub-rule cannot apply. As already noticed by me, the hearing was over on 18.12.1991 itself on

which date the court passed an order for executing the sale deed. Therefore, on and from that date there was no hearing in that case and the rights

of the parties in the execution petition was decided on that date itself. Therefore, on 10.3.1992 the E.P. was not called for any hearing. If that is the

factual situation, the order challenged in this revision holding that the limitation prescribed under Order 21, Rule 106 of the C.P.C. will apply

cannot be sustained. Accordingly the order under challenge is set aside and the revision is allowed. There will be no order as to costs. E.P.No.

279 of 1986 is remitted back to the Executing Court namely the District Munsif, Krishnagiri for disposal in accordance with law.