The court ruled that Section 5 of the Limitation Act does not apply to Order 21 proceedings, making the delay condonation application for restoration of the execution petition not maintainable.

JUDGMENT :

J.C. DOSHI, J.

1. Heard learned advocate Mr.Dipak R. Dave appearing for the revisionist and the opponent – Party-in-person.

2. In this revision filed under Section 115 of the Code of Civil Procedure, 1908 (for short ‘CPC), the revisionist has prayed following reliefs:

“(A) This Hon’ble Court may be pleased to admit and allow the present application;

(B) This Hon’ble Court may be pleased to quash and set aside impugned order dated 29.02.2024 passed by the learned City Civil Court No.18, Ahmedabad in Civil Misc. Application No.611 of 2023 at Annexure-F to the present application, and further may be pleased to reject the delay condonation application filed by the opponent herein;

(C) Pending the admission hearing and final disposal of this application, this Hon’ble Court may be pleased to stay the execution, implementation and operation of impugned order dated 29.02.2024 passed by the learned City Civil Court No.18, Ahmedabad in Civil Misc. Application No.611 of 2023 at Annexure-F to the present application and further may be pleased to restrain the Executing Court from proceedings further with the Restoration Application;”

3. The factual matrix of the case are as under.

3.1 On 29.11.1997, arbitral award was passed in favour of the respondent under the Arbitration Act, 1940. The application challenging the said order came to be dismissed by learned City Civil Court vide order dated 22.02.1999. The respondent filed Execution Petition No.286 of 1999 for executing the award. Upon furnishing security, the Executing Court vide order dated 02.07.1999 stayed the execution proceedings. The First Appeal filed against the said order came to be dismissed on 13.04.2011. On 02.11.2012, Execution Petition No.286 of 1999 was dismissed for non-prosecution. The respondent filed Commercial Darkhast No.411 of 2023 which was later on withdrawn by the respondent. The learned City Civil Court vide order dated 29.02.2024 allowed the delay condonation application in filing the restoration application. Hence, the present revision.

4. In essence, the revisionist has challenged the order passed by the learned City Civil Court in Civil Misc. Application No.611 of 2023 whereby the learned City Civil Court exercising the powers under Section 5 of the Limitation Act, 1963 has condoned the delay of ten years, eleven months and six days in filing the restoration application to restore Execution Petition No.286 of 1999.

5. Learned advocate Mr.Dipak Dave takes this Court through the dates and events took place in the matter and submitted that opponent has filed execution petition being Execution Petition No.286 of 1999 before the learned Court below for execution of the arbitral award. He would further submit that upon furnishing of the security, the Executing Court was pleased to stay the execution proceedings on 26.04.2001. He would further submit that the award passed by the arbitrator has taken the shape of decree as it is approved by the City Civil Court and has been confirmed upto Hon’ble Supreme Court. He would further submit that the execution petition was listed on the cause-list on the learned Trial Court on various dates. Chamber summons was also moved at Exhibit-27 and 28 by decree holder. But ultimately chamber summons came to be dismissed. Later on as the opponent was not remaining present, the execution was dismissed in exercise of powers under Order 21 Rule 105 of CPC as well as Ahmedabad City Civil Court Rules 239, on 02.11.2012. He would further submit that thereafter the opponent has filed fresh Darkhast being Commercial Darkhast No.411 of 2023 before the learned City Civil Court, in which both parties have argued their case but the opponent has withdrawn the darkhast with a view to file a new execution petition.

6. The main plank of argument of learned advocate Mr.Dipak Dave is that in view of Order 21 Rule 106 of CPC, the limitation for restoration of the Darkhast which is dismissed for non- prosecution is 30 days and in view of inbuilt limita