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2005(6) Supreme 178
Supreme Court of India
(From Kerala High Court)
Ashok Bhan & S.B. Sinha, JJ.
Damodaran Pillai & Ors. —Appellants
versus
South Indian Bank Ltd. —Respondent
Civil Appeal No. 1079 of 2004
Decided on 8-9-2005
Counsel for the Parties :
For the Appellants : P. Krishnamoorthy, Sr. Advocate, M.T. George, Advocate.
For the Respondent : V.B. Joshi, Advocate.
Held : 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. 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 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. (Paras 9 and 10)
It is 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. It is 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. An application under Section 5 of the Limitation Act is no maintainable in a proceeding arising under Order XXI of the Code. Application 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. A fortiori for the said purpose, inherent power of the court cannot be invoked. (Paras 13 to 15)
Key Points: - The starting point of limitation for filing a restoration application under Order XXI Rule 106(3) is the date of the order dismissing the execution petition for default, not the knowledge of the order (knowledge presumed where represented by advocate) (!) (!) . - An application under Section 5 of the Limitation Act is not maintainable in proceedings arising under Order XXI CPC, and the court cannot rely on inherent powers to condone delay in such proceedings (!) (!) (!) . - If the execution petition was dismissed for default, the restoration application must be filed within 30 days from the date of that order, and knowledge of dismissal is irrelevant for starting period (!) (!) . - The Kerala amendment prescribing Section 5 applicability in Order XXI became inapplicable after the Limitation Act, 1963; thus, no Section 5 bar in such proceedings (!) . - The court cannot exercise inherent power to condone delay where there is an express statutory provision governing limitation in Order XXI; reliance on inherent powers is inappropriate (no condonation via Section 151 where Section 5 is inapplicable) (!) (!) . - The judgment discusses that the decision aligns with prior interpretations rejecting application of Section 5 to Order XXI proceedings and clarifies the starting point for restoration petitions (!) (!) . - The appellate court set aside the impugned judgment and allowed the appeal (appeal allowed) (!) (!) .
Judgment
S.B. Sinha, J.—Interpretation 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 was dismissed.
2. The basic fact of the matter is not in dispute.
3. The 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.
4. Before the learned Trial Court the appellant herein inter alia raised the contention that the said restoration application was filed beyond the prescribed period of limitation.
5. The 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.
6. Mr. P. 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.
7. Mr. 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.
8. It is 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. Sub-rule (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:
“The 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.
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