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2006 DIGILAW 3544 (MAD)

S. Viajayalakshmi v. Sekar & Others

2006-12-20

S.ASHOK KUMAR

body2006
Judgment :- (Civil Revision Petition filed against the order made in I.A.Diary No: 51627 of 2004 in E.P.No.161 of 2003 in O.S.No: 7367 of 1997 dated 18.2.2005 by the learned IX Assistant City Civil Court, Chennai. ) As against the return of the Interlocutory Application filed by the revision petitioner/plaintiff to restore the Execution Petition as not maintainable, this revision has been filed. 2. The plaintiff filed the suit against the first defendant and other officials to restore the bunk shop again in the suit property and to restore the power service connection to the bunk shop. The case of the petitioner is that she is a physically challenged woman aged 32 years and unmarried. She was running a bunk shop which was originally run by her father from the year 1960. Since her father became old, she has been running the bunk shop from 1972 onwards.; She is eking out the livelihood for seven members of her family with the meagre income derived therefrom. She has been paying regular monthly charges of electricity consumption. According to the plaintiff there are about 10 bunk shops in the said area and most of them affecting the free flow of traffic, but the plaintiff's particular shop is not so affecting the traffic. The first defendant while constructing his house influenced the second and third defendants, who removed the plaintiff's bunk shop illegally and thrown out the plaintiff to street. Though she is not a defaulter in payment of electricity consumption charges, the service connection has been disconnected. 3. The defendant resisted the suit by filing a written statement that the plaintiff's bunk shop has been the cause for affecting the free flow of traffic in the said area and many of the public voiced their objections and pleaded for removal of the bunk. The first defendant also made representation to the second defendant to remove the plaintiff's bunk shop since her father had illegally and unauthorisedly erected he said bunk shop. The official having found that the plaintiff's bunk shop is causing much inconvenience to the traffic removed the same and the plaintiff has no locus standi to file the suit. 4. Though the first respondent filed the written statement, and engaged a counsel, but remained ex parte. The second and third respondents also remained ex parte. Therefore on 29.8.2001, the XI Assistant Judge, City Civil Court, Chennai passed a decree. 4. Though the first respondent filed the written statement, and engaged a counsel, but remained ex parte. The second and third respondents also remained ex parte. Therefore on 29.8.2001, the XI Assistant Judge, City Civil Court, Chennai passed a decree. Thereafter the plaintiff filed E.P.No.161 of 2003. But the same was dismissed for default on 9.2.2004 since her counsel fell ill. It is the case of the plaintiff that she also fell ill and cold not meet the counsel and she came to know about the dismissal of the E.P., only recently. Thus a delay of 304 days occurred in preferring the I.A., to restore the E.P., which was dismissed for default. It is that application which has been rejected without even numbering the same as not maintainable by the learned Judge, against which this revision has been preferred. 5. Learned counsel for the revision petitioner relied upon the judgement of the Orissa High Court in Govinda Chandra Vs. Pal Hira Purchase Ltd., reported in AIR 1985 Orissa 178, wherein it has been held as follows:- "5. ...Considerable argument was advanced by the earned counsel appearing for the parties as to whether an order of restoration of an execution case should be passed under S.151 of the code or under Rr.105 and 106 of O.21 of the code as amended by the Civil P.c., (Amendment) Act No.104 of 1976. For the purpose of easy reference Rr.105 and 106 are quoted below:- 105. HEARING OF APPLICATION:-(1) The Court, before which an application under any of the foregoing rules of this order is pending may fix a day for the hearing of the application. (2) Whereon the day fixed or on any other day to which the hearing may be adjourned, the applicant does not appear when the case is called on for hearing, the court may make an order that the application be dismissed. (3) When the applicant appears and the opposite party to whom the notice has been issued by the Court does not appear, the Court may hear the application ex parte and pass such order as it thinks fit. 106. (3) When the applicant appears and the opposite party to whom the notice has been issued by the Court does not appear, the Court may hear the application ex parte and pass such order as it thinks fit. 106. SETTING ASIDE ORDERS PASSED EXPARTE ETC:-(1)The applicant, against whom an order is made under sub rule (2) of Rule 105 or the opposite party against whom an order is passed ex parte under sub rule (3) of that rule or under sub rule (1) of Rule 23, may apply to the Court to set aside the order, and if he satisfies the court that there was sufficient cause for his non appearance when the application was called on for hearing, the court shall set aside the order on such terms as to costs or other wise as it thinks fit, and shall appoint a day for the further hearing of the application. (2) No order shall be made on an application under Sub-rule (1) unless notice of the application has been served on the other party. (3) An application under sub rule (1) shall be made within thirty days from the date of the order, or where, in the case of an ex parte order, the notice was not duly served, within thirty days from the date when the applicant had knowledge of the order." The legislative intention in introducing these two rules to the Civil Procedure Code was that owing to the inapplicability of the provisions of S.141 to execution proceedings, Order 9 of the Code did not apply to them with the result that the court found it difficult to decide the circumstances in which an application for execution can be dismissed for non appearance or if a court has dismissed an application for non appearance, where the court in the absence of any specific provisions relating to restoration of the execution proceeding, can restore such application. Because of such difficulty of non application of O.9 to execution proceedings, R.106 in particular was inserted to give jurisdiction to the executing courts similar to Rr.9 and 13 of Or.9 for restoration of cases and for setting aside orders passed ex parte therein. Because of such difficulty of non application of O.9 to execution proceedings, R.106 in particular was inserted to give jurisdiction to the executing courts similar to Rr.9 and 13 of Or.9 for restoration of cases and for setting aside orders passed ex parte therein. It is to be remembered that because of absence of provisions, such as Rr.105 and 106 or O.21, courts in India used to take resort to their inherent powers under Section 151 of the Code for restoration of execution cases or setting aside ex parte orders passed therein according to demands of justice, See AIR 1953 SC 23 Keshardeo V. Radha Kissen Chamria. But now that R.106 of O.21 has found place in the Code the difficulty experienced by the courts earlier has been completely obviated and in exercise of their jurisdiction conferred by R.106 of O.21 the courts in suitable cases and for justifiable reasons can restore an execution proceeding and set aside an ex parte order passed therein. In this view of the matter, even if the opposite party made the petition for restoration of the execution case under S.151, it shall be deemed to be one under O.21. R.106 of the Code. It is needless to reiterate that wrong quotation of a provision of law will not disentitle a party to a relief which he is entitled according to law nor can it be denied to him for that reason, because, it is the court which dispenses justice has to apply the correct provision of law in suitable and just cases so as to deliver the relief to a party who is entitled to it. In the aforesaid premises, I hold that the learned Subordinate Judge exercised his jurisdiction according to law in restoring the execution proceeding. The second point urged by the learned counsel for the petitioners is equally unsustainable. 6. It is true that when by lapse of time, a valuable right has been acquired by a party, the same should not be set at naught lightly. But, this principle has got no application to the facts of the present case even though, as pointed out by the learned Subordinate Judge, after dismissal of the execution case on 22.4.1981 it was not possible on the part of the opposite party to levy fresh execution because of the bar provided in Art.136 of the Limitation Act. But, this principle has got no application to the facts of the present case even though, as pointed out by the learned Subordinate Judge, after dismissal of the execution case on 22.4.1981 it was not possible on the part of the opposite party to levy fresh execution because of the bar provided in Art.136 of the Limitation Act. An execution case dismissed for default can be restored under O.21, R.106 of the Code and once restored, the bar of limitation vanishes because, the case reverts to its original number and is brought back to the date on which it was dismissed for default. An illustration will make the point amply clear. 'A' instituted a suit on 1.1.1980 against 'B' on the basis of a promissory note dated 1.1.1978. The suit was dismissed for default on 1.1.1982. it was restored to its original number under O.9 R.9 of the Code on 1.1.1984. On 1.1.1984 'A' could not institute a fresh suit on the basis of the promissory note by operation of Art.19 of the Limitation Act. But when the court passes an order of restoration, the question of limitation is not at all relevant and the suit gets a new lease of life." 6. In view of the above decision, I am of the opinion that Or.21, R.106 of the Code of Civil Procedure could be invoked to file an application for restoration of the Execution Petition which has been dismissed for default. In the present case, according to the plaintiff the counsel who was engaged by her fell ill and he entrusted the matter to his junior who did not prosecute the case diligently and allowed the matter to be dismissed for default on 9.2.2004 and the said fact came to the knowledge of the plaintiff only on 1.12.2004 and immediately she field the restoration petition on 10.12.2004. Even as per sub rule (3) of Rule 106 CPC, in the case of an ex parte order, within thirty days from the date when the applicant had knowledge of the order an application can be filed. The delay is not willful or wanton. Therefore if the date of knowledge is to be taken, then the restoration application has been filed within thirty days and is well within the period of limitation. 7. The delay is not willful or wanton. Therefore if the date of knowledge is to be taken, then the restoration application has been filed within thirty days and is well within the period of limitation. 7. It is to be noted that the first respondent, who is the contesting defendant has not properly defended the suit and therefore the suit came to be decreed exparte. In this revision also, the first respondent/defendant has not appeared. Taking into consideration of this circumstance also, this court deems it fit to allow the I.A.Diary No.51627 of 2004 and restore the E.P.No.161 of 2003 in O.S.No: 7367 of 1997 to the file of the learned IX Assistant City Civil Court, Chennai who shall take up the matter and proceed with the same in accordance with law. 8. In the result, this CRP is allowed with the above directions. Consequently, connected Civil Miscellaneous Petition is closed.