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2009 DIGILAW 69 (AP)

Habeeba Babu v. B. Chowdesh

2009-02-13

G.ROHINI

body2009
Judgment : The Revision petitioner herein is the defendant in O.S.No.159 of 1999 on the file of the Court of the Junior Civil Judge, Hindupur. The suit was filed by the respondent herein for specific performance of Agreement of Sale executed by the defendant in respect of the suit schedule property. The defendant remained ex parte and the suit was decreed on 3.7.2003 as prayed for with costs with a direction to the defendant to execute a Registered Sale Deed in favour of the plaintiff after receiving balance of sale consideration failing which granting liberty to the plaintiff to get executed and registered the same through process of the Court. Pursuant thereto, the plaintiff/decree-holder filed EP.No.72 of 2006 for execution of the decree dated 3.7.2003. The defendant/judgment-debtor appeared and at her request the E.P. was adjourned to 29.03.2007 for counter. However, she failed to appear on that day and therefore she was set ex parte on 29.03.2007. Thereafter, on 26.12.2007 the defendant/judgment-debtor filed an application to set aside the ex parte order dated 29.03.2007 along with EA.No.47 of 2007 under Section 5 of the Limitation Act to condone the delay of 246 days in filing the said application. In the affidavit filed in support of the application, it was pleaded that she was suffering from serious illness and was under treatment at Bangalore on 29.03.2007 and therefore she could not attend the Court and her counsel also did not represent the case since he was engaged in another Court. It was also pleaded that she came to know about the ex parte order only on 26.12.2007 when she met her advocate and therefore the delay which was not intentional may be condoned. The plaintiff/decree-holder filed a counter opposing the said petition. The Court below after hearing both the parties by order dated 15.09.2008 while relying upon a decision of this Court in Tatipalli Vazramma V. Revuri Devaiah And Others 2008 (1) Alt 442 dismissed the petition holding that Section 5 of the Limitation Act was not applicable to the execution proceedings under Order 21 of C.P.C. The said order dated 15.09.2008 is under challenge in this Revision Petition. I have heard the learned counsel for both the parties and perused the material on record. I have heard the learned counsel for both the parties and perused the material on record. The learned counsel for the petitioner vehemently contended that in view of sub-rule (4) of Rule 106 of Order 21 of C.P.C. the provisions of Section 5 of the Limitation Act, 1963, are applicable to the execution proceedings and the Court below committed an error in dismissing the application as not maintainable. Rule 106 of Order 21 of C.P.C. was amended by the High Court of Andhra Pradesh in exercise of the power conferred under Section 122 of C.P.C. with the previous approval of the State Government. By virtue of the said amendment,sub-rule (4) was added after sub-rule (3) of Rule 106. A Notification dated 30.11.1992 was published to that effect in the Official Gazette. Rule 106 of Order 21 of C.P.C. as it stands after the above said amendment by the High Court of A.P. may be extracted hereunder: 106. Setting aside orders passed ex parte, 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 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. (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. (4) The provisions of Section 5 of Indian Limitation Act, 1963, shall apply to all applications under sub-rule (3). In this context, it is also relevant to refer to Rule 105 which runs as under : 105. (4) The provisions of Section 5 of Indian Limitation Act, 1963, shall apply to all applications under sub-rule (3). In this context, it is also relevant to refer to Rule 105 which runs as under : 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) Where on 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) Where 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. Explanation: An application referred to in sub-rule (1) includes a claim or objection made under rule 58. On a combined reading of Rules 105 & 106 of Order 21 of C.P.C., it is clear that the said provisions are applicable to an application under any of the Rules of Order 21. Sub-rule (3) of Rule 105 empowers the Court to hear an execution petition ex parte and pass such an order as it thinks fit where the applicant appears and the opposite party to whom the notice has been issued by the Court does not appear. As per sub-rule (1) of Rule 106 the party against whom an order is passed ex parte under Rule 105 (3) may apply to the Court to set aside the order. Though under sub-rule (3) of Rule 106 the limitation prescribed for making such application is 30 days, as per sub-rule (4) of Rule 106 as inserted by the amendment made by the High Court of A.P., the provisions of Section 5 of the Limitation Act, 1963, are made applicable to the applications under Rule 106 (1). Consequently, even if an application is made beyond the period of 30 days prescribed under Rule 106 (3), the applicant can file an application to condone the delay invoking Section 5 of the Limitation Act. Consequently, even if an application is made beyond the period of 30 days prescribed under Rule 106 (3), the applicant can file an application to condone the delay invoking Section 5 of the Limitation Act. Having considered all the above provisions in detail, this Court in Sale Ranga Swamy V. Special Collector-Cum-Land Acquisition Officer 2004 (2) Alt 764 held that Section 5 of the Limitation Act applies to all the applications under Rule 106 (3) of Order 21 of C.P.C. in spite of bar under Section 5 of the Limitation Act regarding its applicability to execution proceedings under Order 21 of C.P.C. In the light of the ratio laid down in the above case and having regard to the express provisions of sub-rule (4) of Rule 106 of Order 21 of C.P.C. as inserted by A.P. Amendment, it is clear that the executing court is empowered to entertain the applications filed under Section 5 of the Limitation Act to condone the delay in filing the applications to set aside the ex parte orders under Rule 105 of Order 21 of C.P.C. and to pass appropriate orders. Apparently sub-rule (4) of Rule 106 of Order 21 of C.P.C. as inserted by A.P. Amendment was not brought to the notice of this Court in TATIPALLI VAZRAMMA'S case (1 supra). Therefore it is per incuriam. For the aforesaid reasons, the order under Revision dismissing the Revision petitioner's application under Section 5 of the Limitation Act as not maintainable being erroneous is hereby set aside. Accordingly, the Civil Revision Petition is disposed of with a direction to the Court below to hear E.A.No.47 of 2007 afresh on merits and pass appropriate orders following due process of law. No costs.