IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11^TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE M.G.S. KAMAL WRIT PETITION NO.53826 OF 2018 (GM-CPC)

BETWEEN:

SRI. LAKSHMINARASIMHAIAH S/O. NARASIMHAIAH, AGED ABOUT 56 YEARS, RESIDING AT 'LAKSHMI NILAYA', BEHIND GNANABHARATHI HIGH SCHOOL, ANEKAL ROAD, ATTIBELE, BENGALURU-560 102.

…PETITIONER (BY SRI. ANIL SHEKAR K. S.,ADVOCATE)

AND:

VENKATESHA EDUCATION SOCIETY NO.16, ARMSTRONG ROAD, BENGALURU-560 001.

Digitally REPRESENTED BY ITS signed by SECRETARY.

SUMA B N Location:

…RESPONDENT HIGH COURT (BY SRI. RAKSHITH KUMAR, ADVOCATE)

OF KARNATAKA THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 09.10.2018 IN MISC.PETN.NO. 435/2016 PASSED BY THE VI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY, CCH NO.11 VIDE ANNX-A AND ALLOW THIS PETITION AND CONSEQUENTLY RESTORED THE MISC.PETN.NO.889/2006.

THIS PETITION, COMING ON FOR PRELIMINARY HEARING B-GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE MR JUSTICE M.G.S. KAMAL

ORAL ORDER

Petitioner who was the appellant in Case No.MA (EAT)

No.58/1992 on the file of Educational Appellate Tribunal, Bengaluru City had sought execution of the order passed in the said appeal by filing an execution petition in Execution Petition No.Ex.No.889/2006 on the file of VI Additional City Civil and Sessions Judge, Bengaluru.

2. That the said execution petition was dismissed for non-prosecution by order dated 10.12.2015. Seeking to set aside the said order, petitioner herein had filed an application under Order 9 Rule 4 r/w Section 151 of Code of Civil Procedure, which came to be dismissed by the impugned order dated 09.10.2018. Aggrieved by the same, the petitioner is before this Court.

3. Counsel for the petitioner taking this Court through the averments made in the petition and the documents enclosed therewith submits that the reasons assigned by the Trial Court for rejection of the application are apart from the illegal are unsustainable. In that he refers to para 12 of the impugned order wherein the Trial Court has concluded that the very decree which is sought to be executed by the petitioner had become unenforceable, even on the day when it was dismissed for non-prosecution by efflux of period of 12 years and that the petitioner has not shown sufficient reason for restoration of the Executive Petition. He submits it is only for the said reason the Executing Court has rejected the application. Hence, seeks for allowing of the petition.

4. Learned counsel for the respondent/judgment debtor on the other hand relying upon the judgment of the Apex Court in the case of Damodaran Pillai and Others Vs. South Indian Bank Ltd., reported in AIR 2005 SC 3460 vehemently submits that the issue arising in the present writ petition is fully covered by the aforesaid judgment of the Apex Court. He submits that under identical fact situation of the matter, when the execution petition had been dismissed for non prosecution, an application under sub-rule (3) of Rule 106 of Order 21 of CPC had been filed after expiry of more than 8 years and that the Apex Court taking note of non application of provision of Section 5 of the Limitation Act, and in view of the language employed in the Rule 106 of order 21 of CPC., requiring filing of any application within 30 days, had declined to restore the same. Hence, he submits, that present petition having been filed beyond the said period of 30 days was clearly not maintainable. Hence, seeks for dismissal of the petition.

5. In response, learned counsel for the petitioner refers to Karnataka Amendment to the provisions of Rules 104 and 105 of Order 21 of CPC, and points out that the judgment of the Apex Court referred to by the learned counsel for the respondent is distinguishable. In that there is an amendment effected by the State of Karnataka making provisions of Section 5 of the Limitation Act specially applicable, to the application to be filed