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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
RAVINDRA V. GHUGE, J.
Shaikh Chand & Others - Appellants
Versus
Zaitunbee - Respondent
Writ Petition No. 10439 of 2015
Decided on : 07-09-2017
Rule - MARJI No.527/2012 - Order XXI Rule 105, Rule 106, Section 5 of the Limitation Act, 1963 - The court discussed the application of Order XXI Rule 105 and Rule 106, and the interpretation of Section 5 of the Limitation Act, 1963 in the context of the restoration of execution proceedings. The court relied on judgments such as Maharashtra State Electricity Board vs. Niranjan Alloys Steels Private Limited, Damodaran Pillai vs. South Indian Bank, and Collector, Land Acquisition, Anantnag v/s Mst.Katiji to reach its decision.
Fact of the Case:
The Petitioners sought restoration of Regular Darkhast No.119/1997, which was rejected by an order dated 04.07.2015. The court considered the submissions of the parties and the objections of the Judgment Debtors, and the undisputed factors of the case.
Finding of the Court:
The court found that the dismissal of the execution proceedings for want of taking steps was covered by Rule 105 of Order 21. It also concluded that Section 151 of the Code of Civil Procedure could have been invoked by the Executing Court in this matter while considering MARJI No.527/2012. The delay of one year and five months was condoned by imposing costs of Rs.25,000/-.
Issues: The issues included the application of Order XXI Rule 105 and Rule 106, the interpretation of Section 5 of the Limitation Act, 1963, and the exercise of Section 151 of the Code of Civil Procedure.
Ratio Decidendi: The court's decision was based on the interpretation of relevant rules and sections, as well as the application of inherent powers of the court to condone the delay in the restoration of execution proceedings.
Final Decision: The Writ Petition was allowed, the impugned order dated 04.07.2015 was quashed and set aside, and MARJI No.527/2012 was allowed with the condonation of delay by imposing costs of Rs.25,000/- to be deposited by the Petitioners before the Executing Court within a period of FOUR WEEKS from the date of the judgment.
1. Rule. Rule made returnable forthwith and heard finally by the consent of the parties.
2. The Petitioners are aggrieved by the order dated 04.07.2015 by which MARJI No.527/2012 filed by the Petitioners seeking restoration of Regular Darkhast No.119/1997 has been rejected.
3. I have considered the strenuous submissions of the learned Advocates for the respective sides.
4. The Petitioners rely upon the following judgments:
(a) Maharashtra State Electricity Board vs. Niranjan Alloys Steels Private Limited, Aurangabad, 2007 (2) Mh.L.J. 229.
(b) Smt.Suglabai w/o Prabhu Jaishete and another vs. Rangrao s/o Govindrao (since dead through his L.Rs.) and others, 2011 (1) AIR Bom. R 858 : 2011(6) Bom.C.R. 403 : 2011(1) All.M.R. 858.
5. The Respondents rely upon the following judgments:
(a) Damodaran Pillai and others vs. South Indian Bank, AIR 2005 SC 3460.
(b) Mhatarba Laxman Dongare vs. Central Bank Of India and others, 2005(2) ALL MR 742.
(c) Dattatraya Raghunath Jog vs. Radhabai Laxmanrao Ghate, 2007 (3) Mh.L.J. 425.
(d) Mahabir Sah vs. Bibi Jubeda Khatoon and others, AIR 2011 Patna 35.
6. After considering the submissions of the learned Advocates and upon going through the judgments cited, the undisputed factors can be summarized as under:
(a) The Petitioners herein are the original Defendants.
(b) Regular Civil Suit No.643/1987 led to the judgment and decree dated 28.03.1990 with regard to House No.41938 situated at Laxman Chawadi, Aurangabad.
(c) Regular Civil Appeal No.150/1990 was filed by the Defendants which was decided by the Appellate Court on 17.11.1993 and the appeal was partly allowed and the decree was modified.
(d) The Petitioners preferred Second Appeal No.131/1994 and by the judgment dated 25.08.1994, this Court concluded that since Zaitunbee had no title to the suit property and is allowed to occupy the property only as a licencee of the Defendants, the decree passed shall be operative till the lifetime of Zaitunbee and thereafter, the Defendants would be entitled to get back the possession by the due process of law.
(e) As Zaitunbee passed away on 02.12.1996, the execution proceeding Regular Darkhast No.119/1997 was instituted.
(f) After considering the submissions of the parties and the objections of the Judgment Debtors, the Executing Court passed the order dated 12.02.1999 by which the possession warrant was issued.
(g) By order dated 13.12.2010, Regular Darkhast No.119/1997 was disposed of for want of steps.
(h) The Decree Holders preferred MARJI No.527/2012 on 12.06.2012 and prayed for condonation of delay of one year, 04 months and 22 days in filing the application for restoration of the execution proceedings.
(i) By the impugned order dated 04.07.2015, the MARJI No.527/2012 has been rejected for the reason that sufficient grounds were not cited.
7. The thrust of the submissions of the Petitioners herein is that after the hearing was concluded, no further hearing was contemplated. Upon deciding all the objections of the Judgment Debtors, the Executing Court had issued the possession warrant and in that backdrop, the dismissal of the execution proceedings for want of steps would not be an order passed under Order 21 Rule 105 of the Code of Civil Procedure. Hence, Rule 106 of Order 21 and especially sub-rule (3) of Rule 106 of Order 21 of the Code of Civil Procedure r/w Section 5 of the Limitation Act, 1963 would not be applicable to this case.
8. Per contra, the strenuous submissions of the Respondents are two fold. Firstly, the dismissal of the execution proceedings is under Order 21 Rule 105 and as such, the restoration application could have been entertained only within 30 days from the date of the order of dismissal. The ratio laid down in Damodaran Pillai (supra) would become applicable. Secondly, Section 5 of the Limitation Act would not apply to this case and the execution proceedings are specifically excluded from the ambit of Order 21 of the Code of Civil Procedure. Consequentially, there could be no order of re
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