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IN THE HIGH COURT OF JUDICATURE AT MADRAS
G. CHANDRASEKHARAN, J.
M/s. Chandan Pharmaceuticals Corporation, represented by its Partner Harish Kumar Mehta & Another – Appellant
Versus
P.K. Jalan & Others – Respondents
C.R.P.(NPD) No. 1992 of 2021 & C.M.P. No. 15164 of 2021
Decided on : 08-10-2021
Limitation Act - Section 5 – Civil Procedure Code,1908 - Section122 - Order XXI - Rule 105(4) and 106 - Limitation - Condone the delay - Exparte order was passed in Execution Petition R.E.P. No.128 of 2013 on whereas application REA No. was filed by the respondent under Order XXI Rule 106 CPC only - It is clear from Order XXI Rule 106 CPC that an application to set aside the exparte order has to be filed within a period of 30 days from the date of order. But, in instant case, said application has been filed beyond period of 30 days - Hence, Court is of considered view that application filed by respondents in REA No. is not maintainable - Respondents have filed application only under Order XXI Rule 106 CPC and being case, as held by Hon'ble Supreme Court of India, it is well settled that when a power is to be exercised by Civil Court under an express provision, inherent power cannot be taken recourse - Whether Section 5 of Limitation Act is applicable to proceedings under Order XXI Rule 105 and 106 CPC, it is necessary to understand the background leading to filing - Held, There is nothing on record to show that proviso to Sub-rule (3) of Rule 105, which would now become the proviso to Sub-rule (3) of Rule 106 of Order XXI, is, in any way, inconsistent with amendments introduced - Therefore, it was held that refusing to entertain application on ground that it was filed beyond 30 days and that there was no power to entertain same, is not in accordance with law - Respondents filed petition under Section 5 of Limitation Act read with Order XXI Rules 105 and 106 CPC for condoning delay in filing petition for restoring Execution Petition. Respondents filed petition to restore Execution Petition within 30 days from knowledge of closure of Execution Petition - Therefore, respondents are well within their right to file a petition for condoning delay in filing a petition to restore Execution Petition - Civil Revision Petition is dismissed. -
JUDGMENT :
(Civil Revision Petition filed under Article 227 of the Constitution of India, to set aside the order dated 09.03.2021 in E.A.No.5 of 2020 in E.P.No.1950 of 2006 in O.S.No.6686 of 1996 on the file of learned X Assistant Judge, City Civil Court, Chennai.)
1. This petition is filed challenging the order passed in E.A.No.5 of 2021 in E.P.No.1950 of 2006 in O.S.No.6686 of 1996 on the file of X Assistant City Civil Court, Chennai.
2. E.A.No.5 of 2020 was filed under Section 5 of the Limitation Act to condone the delay of 912 days in filing the petition to restore the E.P.No.1950 of 2006. The trial Court allowed this petition on payment of costs of Rs.5,000/- to the petitioners. Against the said order, this Civil Revision Petition is preferred.
3. Learned counsel for the petitioners submitted that Section 5 of the Limitation Act is not applicable to the proceedings under Order XXI Rules 105 and 106 CPC. Therefore, filing a petition under Section 5 of Limitation Act and Order XXI Rule 105 (3) CPC for condonation of delay and allowing the petition is not correct. Hosts of judgments have been placed before this Court in support of the applicability and non-applicability of Section 5 of the Limitation Act in EP proceedings. Learned counsel for the petitioners heavily relied on the judgment reported in 1989 (1) LW 178 in (N.M.Natarajan ..vs.. Deivayanai Ammal and others) for the proposition that Section 5 of the Limitation Act, 1963 is not applicable to the petition filed for setting aside the orders passed exparte in proceedings under Order XXI CPC. The relevant portion reads as under:-
....
8. We have already noticed that there was a specific provision in sub R.(4) of R.(105) specifically providing for the application of the provisions of S.5 of the Indian Limitation Act, 1908, and therefore, there was no difficulty in applying the said provisions before the amended Act came into force. We find that there is no corresponding provision in the amended Act and R.(106) of O.21 is silent about its applicability of the provisions of S.5 of the Limitation Act.
9. ....
10. .... We are unable to agree with the said contentions. The language of the section itself is clear that the Court has got jurisdiction to enlarge time where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Code. The Court cannot exercise its powers under this provision to excuse the delay in filing an application under Order 21, Rule 106, C.P.C., since the period is fixed by the statute.
11. ....
12. In the result, we hold that S.5 of the Limitation Act, 1963 is not applicable to a petition filed for setting aside the orders passed exparte under R.106 o O.21 CPC., and the provisions contained in sub R.(4) of R.105 (Madras Amendment) is no longer in force. Accordingly, the civil revision petition is allowed... ”
4. He also relied on the following judgments for the same proposition ie., Section 5 of the Limitation Act is not applicable to Order XXI Rules 105 and 106 proceedings.
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