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2023 Supreme(Online)(KER) 29303
HIGH COURT OF KERALA
C.S. DIAS, J
P. N SUGUNAN – Appellant
Versus
STATE BANK OF INDIA – Respondent
OP(C) 259 2023
JOLIMA GEORGE, JITHESH MENON-R1
The inherent powers under Section 151 of the CPC can be invoked to restore an execution petition dismissed for default in the absence of a fixed hearing date.
Headnote:
CPC - Execution Petition - Code of Civil Procedure Section 151, Limitation Act Sections 5 and 137 - The court upheld the use of inherent powers under Section 151 of the CPC to restore an execution petition dismissed for default, distinct from applications under Order XXI rules.
Fact of the Case:
The decree-holder filed an execution petition for recovering a monetary amount which was dismissed for default. Following this, a subsequent execution petition was also dismissed as time-barred. The decree-holder then sought to restore the original execution petition under Section 151 CPC.
Issues: Whether there was an error in the lower court's order to allow the restoration of the execution petition after it had been dismissed for default.
Ratio Decidendi: The court held that Rule 105 and 106 of Order XXI CPC does not apply to cases where no hearing date was fixed, thereby allowing the application for restoration under the inherent powers granted by Section 151 of the CPC.
Final Decision: The original petition is dismissed.
JUDGMENT
Aggrieved and dissatisfied with Ext P5 order passed in EA No.181/2019 in EP No.113/1998 in OS No. 210/1994 by the Court of the Subordinate Judge, Cherthala, the fourth judgment-debtor has filed the original petition. The first respondent is the decree- holder and the respondents 2 to 5 are the judgment-
debtors 1 to 3 and 5 before the court below.
2. The background facts, leading to Ext P5 order, in a nutshell, are; the first respondent/Bank has filed EP No.113/1998 against the petitioner and respondents 2 to 5 to recover an amount of Rs.1,98,666/- with future interest, which was dismissed for default on 1.12.2010. Thereafter the first respondent filed EP No.12/2014, which was dismissed as time barred. Then, the first respondent filed EA No.181/2019 (Ext P3), under Sec.151 of the Code of Civil Procedure read with Sec.5 of the Limitation Act to restore EP No.113/1998. The petitioner opposed Ext P3 application through Ext P4 objection. The court below, on an erroneous consideration of the law, has allowed Ext P3 application by the impugned Ext P5 order. Ext P5 is manifestly wrong and unsustainable in law.
Hence the original petition.
3. Heard; Smt.Jolima George, the learned Counsel appearing for the petitioner and Sri.Jithesh Menon, the learned counsel appearing for the first respondent on admission.
4. The question is, is there any error in Ext P5 order.
5. The petitioner’s case is that the court below had decreed OS No.210/1994 on 17.7.1998 by permitting the first respondent to recover an amount of Rs.1,98,666/-
with future interest from the petitioner and the respondents 2 to 5.
6. The first respondent had initially filed EP No.113/1998, which was dismissed for default on 1.12.2010. Thereafter, the first respondent filed EP No.12/2014, which was dismissed by the court below by Ext P2 order dated 8.11.2017.
7. After Ext P2 order was passed, the first respondent filed Ext P3 application, to restore the earlier filed EP No.113/1998.
8. The petitioner opposed Ext P3 application by filing Ext P4 written objection, inter alia, contending that there is no enabling provision to restore an execution petition after the expiry of thirty days.
9. The above question is no longer res integra, in view of the categoric declaration of law by this Court in Chellamma vs. Somakumari and others [ 2015 (5) KHC
737] wherein this Court held as follows:
“14. R.105 and R.106 of Order XXI CPC were inserted by the CPC Amendment Act, 104 of 1976. Before such insertion, there were Rules in some of the States including Kerala to deal with situations where parties failed to appear. R.105(4) of the Kerala Rules provided for application of S.5 of the Limitation Act as well. Specific provision is made under R.105 providing that the executing Court may fix a day for hearing of the application and for dismissal of the application for non- appearance of the applicant on such date fixed for hearing. Provision has also been made under R105(3) where the applicant appears and the opposite party does not appear. In such a situation, the executing Court can hear the application ex parte and pass such order as it thinks fit. By the explanation to R. 105, it is made clear that an application under sub-rule (1) includes a claim or objection made under R58. R.106 specifically provides for application to set aside the order passed under sub-rules (2) or (3) of R.105 and sub- rule (1) of R.23 of Order XXI CPC. If the applicant in an application under R. 106 satisfies the Court that there was sufficient cause for his non-appearance when the application was called for hearing, the Court shall set aside the order on such terms as to costs or otherwise as it thinks fit.
15. R.105 specifically provides that the executing Court may fix a day for hearing of the application. The eventualities covered by sub-rules (2) and (3) of R.105 could occur only in a case where the executing Court did fix a day for hearing of the application. When no such day was fixed for hearing of the appli
