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Madhya Pradesh High Court · body

2007 DIGILAW 1147 (MP)

Hafiz Noorbux v. Dattatrey Joshi

2007-10-30

P.K.JAISWAL

body2007
JUDGMENT 1. This revision application has been filed by the applicants/judgment debtors, against the order dated 10.4.2007 passed by the 9th Civil Judge, Class II, Gwalior, in MJC No.73/2006, whereby the trial Court allowed the application for restoration of execution, which was dismissed in default on 10.8.2000. 2. Brief facts of the case are that Civil Suit No.86-A/68-77 was decreed and decree for ejectment and arrears of rent of Rs.1,593/- and mesne profit @ Rs.45/- per month was passed in favour of the plaintiff on 29.9.1970. The appeal filed by the defendants was partly allowed by the lower appellate Court vide order dated 1.12.1971. The plaintiff challenged the said decree by filing Second Appeal No.117/1972 before the High Court. This Court vide judgment and decree dated 17.10.1977 allowed the appeal and set aside the judgment and decree of the lower appellate Court and restored the judgment of the trial Court. An application for execution filed by the decree holder was dismissed on 3.12.1991 by holding that the decree was fully satisfied. On 7.1.1997, Civil Revision No.6911996 against the said order was allowed and it was held that the decree for ejectment under section 12(1)(a) of the M.P. Accommodation Control Act, 1961 (for short "the Act") is still executable for ejectment. The application for execution filed on 14.1.1997 was dismissed in default on 10.8.2000. On 16.6.2005, the respondents again filed an application for execution of decree, which was dismissed by the trial Court vide order dated 16.01.2006 on the ground that the same was time barred. 3. The respondents challenged the said order by filing Civil Revision No.34I2oo6. The Civil Revision was decided by this Court vide order dated 21.7.2006. The operative part of the order is relevant, which reads as under: "The Hon'ble apex Court in the case of Collector, Lam/Acquisition Anantnag and another v. Mst. 3. The respondents challenged the said order by filing Civil Revision No.34I2oo6. The Civil Revision was decided by this Court vide order dated 21.7.2006. The operative part of the order is relevant, which reads as under: "The Hon'ble apex Court in the case of Collector, Lam/Acquisition Anantnag and another v. Mst. Katiji and others, reported in AIR 1987 SC 1357, has held that the decree executable within a period of 12 years from the date of passing of decree, but in the present case, the decree dated 29.9.1970 get merge in the order passed in second appeal on 17.11.1977 and therefore, period for execution of the decree will start from 17.11.1977 and not from 7.1.1997 and therefore, the learned executing Court has not committed any error in rejecting the execution dated 16.6.2005 as time barred by holding that the said execution was filed after expiry of more than 12 years from the date of passing decree. The decision cited by the applicant in the case of Shaifuddin (supra), will not be applicable in the present case. In the facts and circumstances of the case the learned executing Court while rejecting the execution observed that the applicants are at liberty to file an application for restoration of the execution which was dismissed on 10.8.2000, the applicant are at liberty to file an application for restoration of execution dated 14.1.1997 which was dismissed in default on 10.8.2000 and if such an application is tiled within a period of six weeks from today then the learned executing Court shall consider and decide it in accordance with law. For the aforesaid reasons, I do not find any jurisdictional error in the impugned order nor learned executing Court committed any illegality or material irregularity in passing the impugned order. In view of the above the revision has no merit and is accordingly dismissed with the aforesaid." 4. From perusal of the order, it is clear that the respondents were granted liberty to file an application for restoration of execution dated 14.1.1997, which was dismissed in default on 10.8.2000 and this Court further directed the executing Court to decide the application for restoration in accordance with law. 5. From perusal of the order, it is clear that the respondents were granted liberty to file an application for restoration of execution dated 14.1.1997, which was dismissed in default on 10.8.2000 and this Court further directed the executing Court to decide the application for restoration in accordance with law. 5. Learned counsel for the applicants submitted that the trial Court allowed the application and condoned the delay for the period from 11.8.2000 to 6.8.2006, without any application for condonation of delay and inspite of the finding recorded by the trial Court that no substantial clarification regarding delay was given by the respondents, but in order to substantiate the cause of justice, the application was allowed, which is contrary to the provisions of rules 105 and 106 of the Order 21 of the Civil Procedure Code (for short "the Code"). 6. Shri K.N. Gupta, learned senior counsel appearing on behalf of the applicants raised a short question in support of this revision and contended that in terms of sub-rule (3) of rule 106 of Order 21 of the Code, a restoration application is required to be filed within 30 days from the date of passing of the order and not thereafter and for the said purpose, section 5 of the Limitation Act, 1963 is not applicable. It was argued that the executing Court could not have, thus, condoned the delay in exercise of its inherent power or otherwise. 7. Shri Y.K. Bharadwaj, learned counsel appearing on behalf of the respondents, on the other hand, contended that on 10.8.2000, the case was listed for arguments on objections filed by the applicants-judgment debtors to the execution of the decree. The trial Court in absence of the respondents and their counsel inspite of rejecting or allowing the objections committed an error in dismissing the execution filed by the respondents in default. The sole contention is that dismissal of execution application for default of appearance of decree holders cannot be treated under rule 105 of Order 21 of the Code so as to attract rule 106, but it should be under inherent powers and no time limit is prescribed for an application for its restoration and the learned trial Court has not committed any error in restoring the execution by the impugned order dated 10.4.2007. He also drew my attention to the decision of this Court in the case of Khoobchand Jain and another v. Kashi Prasad and others [ 1986 JLJ 42 = AIR 1986 MP 66 ]. 8. The execution petition was dismissed in default on 10.8.2000 in terms of the provisions of rule 105 of Order 21 of the Code. Sub-rule (1) of the said rule provides for fixing a day for hearing of the application; whereas sub-rule (2) thereof envisages that if on the day so 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. Sub-rule (3) of the said rule postulates hearing of an application ex parte in a case where the applicant appears and the opposite party to whom the notice has been issued by the Court does not. Sub-rule (1) of rule 106 of Order 21 of the Civil Procedure Code provides for restoration of the application for default or setting aside of the order passed under sub-rules (2) and (3) of rule 105 of Order 21 in the following terms: "106. (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 otherwise as it thinks fit, and shall appoint a day for the further hearing of the application." 9. Sub-rule (3) of rule 106 provides for the period of limitation for filing such an application which reads as under: "106. (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." 10. (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." 10. In the case of Damodaran Pillai and others v. South Indian Bank Ltd. [ (2005)7 SCC 300 ], the execution petition was dismissed for default on 1.11.1990 and application for restoration of the said execution petition was filed on 4.4.1998. Restoration of the execution was allowed by the executing Court on 6.10.200 1. The Civil Revision filed against the said order was dismissed on 22.7.2003. The apex Court while dismissing the execution has held that the civil Court in the absence of any express power cannot condone the delay. It is also held that the application of section 5 of the Limitation Act has been expressly excluded in proceedings under Order 21 of the Code. It is also held that hardship or injustice is not a ground for extending limitation period. Paragraphs 11, 14, 16 and 21 are relevant, which read as under: "11. The learned Judge, however, while arriving at the said finding failed and/or neglected to consider the effect of sub-rule (3) of rule 106. A bare perusal of the aforementioned rule will clearly go to show that when an application is dismissed for default in terms of sub-rule (2) of rule 105, the starting point of limitation for filing of a restoration application would be the date of the order and not the knowledge thereabout. As the applicant is represented in the proceeding through his advocate, his knowledge of the order is presumed. The starting point of limitation being knowledge about the disposal of the execution petition would arise only in a case where an ex parte order was passed and that too without proper notice upon the judgment debtor and not otherwise. Thus, if an order has been passed dismissing an application for default under sub-rule (2) of rule 105, the application for restoration thereof must be filed only within a period of thirty days from the date of the said order and not thereafter. In that view of the matter, the date when the decree-holder acquired the knowledge of the order of dismissal of the execution petition was, therefore, wholly irrelevant. 14. In that view of the matter, the date when the decree-holder acquired the knowledge of the order of dismissal of the execution petition was, therefore, wholly irrelevant. 14. It is also trite that the civil Court in the absence of any express power cannot condone the delay. For the purpose of condonation of delay in the absence of applicability of the provisions of section 5 of the Limitation Act, the Court cannot invoke its inherent power. 16. An application under section 5 of the Limitation Act is not maintainable in a proceeding arising under Order 21 of the Code. Application of the said provision has, thus, expressly been excluded in a proceeding under Order 21 of the Code. In that view of the matter, even an application under section 5 of the Limitation Act was not maintainable. A fortiori for the said purpose, inherent power of the Court cannot be invoked. 21. Hardship of injustice may be a relevant consideration in applying the principles of interpretation of the statute, but cannot be a ground for extending the period of limitation." 11. From the law laid down by the apex Court in-the case of Damodaran Pillai and others (supra), an application for condonation of delay under section 5 of the Limitation Act has been expressly excluded in the proceedings under Order 21 of the Code. In the case in hand, the execution was dismissed on 10.8.2000 and as per rule 106(3) and 105(2) of the Code, the starting point of limitation for filing of a restoration application would be the date of order and not the knowledge thereof. It is not in dispute that after dismissal of the application for execution on default, no application for restoration has been filed within a period of 30 days from the date of the order of disposal; whereas under rule 105(2) of Order 21 of the Code, the said application has to be filed within a period of 30 days from the date of order of dismissal. The trial Court without looking to the provisions of rules 105 and 106 of the Code allowed the application contrary to the dictum of the apex Court in the case of Damodaran Pillai (supra). 12. The trial Court without looking to the provisions of rules 105 and 106 of the Code allowed the application contrary to the dictum of the apex Court in the case of Damodaran Pillai (supra). 12. The apex Court in the case of D. Gopinathan Pillai v. State of Kerala and another [2007(11) MPWN 25= (2007)2 SCC 322 ], has held that delay cannot be condoned merely on sympathetic ground when a mandatory provision is not complied with and when the delay is not properly, satisfactorily and convincingly explained. 13. Here in the present case, the mandatory provisions of rules 105 and 106 are not complied with nor the respondents properly, satisfactorily and convincing explained the delay nor there was any substantial clarification regarding delay in not filing restoration application in time. The trial Court committed gross error in allowing the application for restoration of execution by the impugned order dated 10.4.2007. 14. It is well settled law that in absence of any application for condonation of delay, the delay cannot be condoned. {See: Ragho Singh v. Mohan Singh and others [ (2001)9 SCC 717 ]}. 15. In the case of Khubchand Jain and another (supra), the executing Court directed the decree-holder to furnish a fresh list of movables and issues a warrant of attachment of such movables. Thereafter, inspite of number of opportunities, the decree-holder failed to submit any list of movables for attachment. On 21.7.1979, the executing Court granted further time to the decree-holders to furnish a list of property within three days and on such a list being furnished, warrant of attachment was to be issued. The case was adjourned to 21.8.1979 awaiting the execution of the warrant. On 21.8.1979, neither the decree-holders nor their counsel appeared in the Court when the case was called out. The execution application was, therefore, dismissed on 21.8.1979 in default of appearance of the decree-holders. On 24.9.1979, the decree-holders filed an application under Order 21 (106) of the Code for restoration of the execution case alongwith an application for condonation of delay under section 5 of the Limitation Act. The executing Court dismissed the application for condonation of delay on the ground that section 5 of the Limitation Act does not apply to the applications under Order 21 of the Code. The executing Court dismissed the application for condonation of delay on the ground that section 5 of the Limitation Act does not apply to the applications under Order 21 of the Code. In a revision, this Court while allowing the application has held that the date on which the execution application was dismissed for default of appearance of the decree-holders, was not a date fixed for "hearing" within the meaning of rule 105. It was a date awaiting report as to execution of the warrant which was supposed to be issued on submission of a list of movable property by the decree-holders within three days of the earlier order. Consequently, the dismissal of execution was not under rule 105(2) of Order 21 of the Code and therefore, the provisions of rule 106 are not attracted. It is held that the dismissal of the execution application in default of appearance is referable to inherent powers of the Court and further held that since the dismissal of the execution application was under inherent powers, the application for its restoration will be by invoking the inherent powers of the Court and in that event, no time limit is prescribed for invoking the inherent powers of the Court. Paragraphs 18, 19 and 20 are relevant, which read as under : "18. In my opinion, the date on which the execution application was dismissed for default of appearance of the decree-holders, namely, 21.8.1979 was not a date fixed for "hearing" within the meaning of rule 105. It was a date awaiting report as to execution of the warrant which was supposed to be issued on submission of a list of movable property by the decree-holders within three days of the earlier order dated 21.7.1979. Consequently, the dismissal of execution application on 21.8.1979 was not under rule 105(2) of 0.21 of the Civil P.c., attracted. The dismissal of the execution application in default of appearance on 21.8.1979 is referable to inherent powers of the Court. 19. I have pointed out above that there is a specific provision for dismissal of suit for non-payment of costs etc. in O.9, while there is no analogous provision in O.21 of the Civil P.C. Consequently, the dismissal of execution application for non-payment of process fee or for failure to comply with any direction of the Court, will be in exercise of inherent powers. in O.9, while there is no analogous provision in O.21 of the Civil P.C. Consequently, the dismissal of execution application for non-payment of process fee or for failure to comply with any direction of the Court, will be in exercise of inherent powers. In the present case, the dismissal was not failure of the decree-holders to pay process fee or to submit a list of property, but was in default of appearance of the decree-holders. The Court below committed a mistake in treating the dismissal of execution application and R.I05 so as to attract R.106 of O.21 of the Code. The orders passed by the Courts below cannot be sustained. 20. Since the dismissal of the execution application on 21.8.1979 was under inherent powers, the application for its restoration will be by invoking the inherent powers of the Court and in that event, no time limit is prescribed for invoking the inherent powers of the Court." 16. Here, in the present case, the law laid down by the apex Court in the case of Damodaran Pillai (supra), is very specific and clear and, therefore, the trial Court committed error in restoring the execution which was dismissed on 10.8.2000 and condoning the delay for the period from 10.8.2000 to 7.8.2006 without any application for condonation of delay, on being influenced by the order dated 21.7.2006 passed in CR No.34/ 2006 overlooking the provisions of Order 21 rules 105 and 106 of CPC. 17. The revision is, therefore, allowed and the order dated 10.4.2007 passed by 9th Civil Judge Class II, Gwalior, in MJC No.73/2006 is hereby set aside and the order dated 10.8.2000 of the executing Court is restored. There is no order as to costs.