Pillai & Ors Vs. South Indian Bank Ltd  Insc 476 (8 September 2005)
Bhan & S.B. Sinha S.B. Sinha, J:
of sub rule (3 ) of Rule 106 of Order XXI of the Code of Civil Procedure (Code)
falls for consideration in this appeal which arises out of the judgment and
order dated 22nd July, 2003 passed by a learned Single Judge of the High Court
of Kerala in CRP No. 1033 of 2002 whereby and whereunder the Revision Petition
filed by the appellants herein from an order dated 6.10.2001 passed by the
Principal sub-Judge Kollam in Execution Petition No. 234/88 in O.S. No. 178/84
basic fact of the matter is not in dispute.
respondent herein obtained a decree against the appellant herein for a sum of Rs.
78,155.80 in a suit being No. 178/84 filed before the Principal sub-Judge, Kollam.
An Execution Petition was filed by the respondent herein for execution of the
said decree in the said court which was marked as Execution Petition No. 234 of
1988. It is not in dispute that the said Execution Petition had been set down
hearing. It was dismissed for default on 1.11.1990. It is also not in dispute
that an application for restoration of the said Execution Petition was filed by
the respondent herein on 4.4.1998 inter alia on the premise that it came to
learn about the dismissal of the said Execution Petition only on 25.3.1998.
the learned Trial Court the appellant herein inter alia raised the contention
that the said restoration application was filed beyond the prescribed period of
learned Subordinate Judge in terms of his order dated 6th October, 2001 rejected the said contention. The
Revision Petition preferred against the same was dismissed summarily. The
appellant is, thus, before us.
Krishnamoorthy, learned Senior Counsel appearing on behalf of the appellant
raised a short question in support of this appeal contending that in terms of
sub-rule (3) of Rule 106 of Order XXI of the Code of Civil Procedure a
restoration application is required to be filed within 30 days from the date of
passing of the order and not thereafter and for the said purpose Section 5 of
the Limitation Act, 1963 is not applicable. It was urged that the Executing Court could not have, thus, condoned the
delay in exercise of its inherent power or otherwise.
V.B. Joshi, learned counsel appearing on behalf of the respondent, on the other
hand, contended that keeping in view the peculiar facts and circumstances of
this case the Executing
Court should be held
to have inherent power to condone the delay.
not in dispute that the Execution Petition was dismissed in terms of the
provisions of Rule 105 of Order XXI of the Code of Civil Procedure.
(1) of the said Rule provides for fixing a day for hearing of the application;
whereas sub-rule (2) thereof envisages that if on the day so fixed or on any
other day to which the hearing may be adjourned, the applicant does not appear
when the case is called on for hearing, the Court may make an order that the
application be dismissed. Sub-rule (3) of the said Rule postulates hearing of
an application ex-parte in a case where the applicant appears and the opposite
party to whom the notice has been issued by the Court does not. Sub-rule (1) of
Rule 106 of Order XXI of the Civil Procedure Code provides for restoration of
the application for default or setting aside of the order passed under
sub-rules (2) & (3) of Rule 105 of Order XXI in the following terms:
applicant, against whom an order is made under sub-rule (2) of rule 105 or the
opposite party against whom an order is passed ex-parte under sub-rule (3) of
that rule or under sub-rule (1) of Rule 23, 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.
(3) of Rule 106 provides for the period of limitation for filing such an
application which reads as under:
application under sub-rule (1) shall be 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." The learned Executing Court allowed application of restoration filed by the Respondent
herein on the ground that it acquired the knowledge about the dismissal of the
Execution Petition only on 25.3.1998.
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 Rule 105, the starting period 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, 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.
notice that the period of limitation has been fixed by the provisions of the
Code and not in terms of the second schedule appended to the Limitation Act,
also not in dispute that the Kerala amendment providing for application of
Section 5 of the Limitation Act in Order XXI, Rule 105 of the Code became
inapplicable after coming into force of the Limitation Act, 1963, (Act LVI of
also trite that 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.
well-settled that when a power is to be exercised by a civil court under an
express provision, the inherent power cannot be taken recourse to.
application under Section 5 of the Limitation Act is not maintainable in a
proceeding arising under Order XXI of the Code.
of the said provision has, thus, expressly been excluded in a proceeding under
Order XXI of the Code. In that view of the mater, even an application under Section
5 of the Limitation Act was not maintainable.
fortiori for the said purpose, inherent power of the court cannot be invoked.
Reports 214 ], Mohan, J. (as His Lordship then was) opined:
having regard to the above language, it was permissible to have such a
provision wherein the position is clearly changed at present. Section 5 of the
present Limitation Act, 1963, states that any appeal or any application under
any of the provisions of Order 21, Civil Procedure Code, 1908, may be admitted
after the prescribed period if the appellant or the appellant satisfies the
Court that he had sufficient cause for not preferring the appeal or making the
application within such period. The Explanation is omitted as unnecessary.
Therefore, with reference to applications under Order 21, Civil Procedure Code,
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, Civil Procedure Code, 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 106 of Order 21, Civil Procedure Code, did not make any reference to the
same saying that section 5 of the Limitation Act would be applicable. In view
of this, the order of the Court below ought to be upheld." It was further
question of invoking inherent powers under section 151, Civil Procedure Code,
does not arise in this case. That is because of the specific provision
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
Civil Procedure Code, 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 or provision is consistent with the provisions of
the principal Act, as amended by this Act, stand repealed." We
respectfully agree with the said opinion.
Chettiar [ AIR 1962 Madras 386], Sri Tankala Appalaswamy Mr.
Joshi, however, placed strong reliance upon Khoobchand Jain & opinion, has
no application to the facts and circumstances of the present case. Therein the
Execution Application was dismissed on a day which was not fixed for hearing.
The said order of dismissal, therefore, was not passed in terms of sub-rule (2)
of Rule 105 of Order XXI of Code of Civil Procedure. In that situation it was
the present case, the decree-holders had already applied for execution and paid
process-fee for issuance of a warrant of attachment. It was, therefore, for the
Court to issue a warrant of attachment of such property as was in possession of
the judgment-debtors. Submission of the inventory of moveable property in
possession of the judgment-debtors is not necessary under the relevant rules.
In case, the warrant is returned unexecuted, the decree-holders could, in their
discretion, make an application for examination of the judgment-debtors under
R.41 or could resort to any other mode to recover the decretal amount." It
was further observed:
the dismissal of the execution application on 21.8.1979 was under inherent
powers, the application for its restoration will be by invoking the inherent
powers of the Court and in that event, no time limit is prescribed for invoking
the inherent powers of the Court." The principles underlying the
provisions prescribing limitation are based on public policy aiming at justice,
the principles of repose and peace and intended to induce claimants to be
prompt in claiming relief.
or injustice may be a relevant consideration in applying the principles of
interpretation of statute, but cannot be a ground for extending the period of
3 SCC 23] interpretation of Section 48-A of the Karnataka Land Reforms Act,
1961 fell for consideration before this Court which reads, thus:
Enquiry by the Tribunal, etc.
Every person entitled to be registered as an occupant under Section 45 may make
an application to the Tribunal in this behalf. Every such application shall,
save as provided in this Act, be made before the expiry of a period of six
months from the date of the commencement of Section 1 of the Karnataka Land
Reforms (Amendment) Act, 1978." Prior to the amendment of the said Act by
Act 1 of 1979, a specific provision existed for condonation of delay but the
same was deleted.
similar contention, as in the present case, was raised therein which was
repelled by this Court stating:
It is true there is a principle of interpretation of statutes that the plain or
grammatical construction which leads to injustice or absurdity is to be avoided
(see Venkatarama Iyer, J. in Tirath Singh v. Bachittar Singh (AIR at 855). But
that principle can be applied only if "the language admits of an
interpretation which would avoid it".
V. Parulekar v. District Magistrate (AIR at 327). In our view Section 48-A, as
amended, has fixed a specific date for the making of an application by a simple
rule of arithmetic, and there is therefore no scope for implying any
"ambiguity" at all. Further "the fixation of periods of
limitation must always be to some extent arbitrary, and may frequently result
in hardship. But in construing such provisions, equitable considerations are
out of place, and the strict grammatical meaning of the words is the only safe
guide"." the period of limitation can be prescribed under Section 417
of the Criminal Procedure Code, wherefor it was not necessary for the
legislature to amend the Limitation Act and insert an article dealing with such
the reasons aforementioned, the impugned judgment cannot be sustained which is
set aside accordingly. The Appeal is allowed. No costs.