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2011 DIGILAW 268 (MP)

Gayaram Tamrakar v. Chandrabhan Singh

2011-02-24

ALOK ARADHE

body2011
Judgment ( 1. ) THIS revision has been preferred by the applicant-decree holder against the order dated 22-7-2008 by which the appeal filed by the decree holder under Order 43 Rule 1 (j) of the Civil Procedure Code has been rejected. ( 2. ) THE facts giving rise to filing of the revision are that the applicant- decree holder filed a civil suit namely Civil Suit No. 1-A/76 seeking the decree of possession and damages which was dismissed on 28-2-1981. In appeal, the Appeal Court vide judgment and decree dated 3-5-1982 passed in Civil Appeal No. 17-A/81 decreed the claim of the applicant. THE judgment and decree of the Appeal Court was subject matter of Second Appeal No. 259/1982 which was dismissed by this Court vide order dated 5-12-1990. On 4-5-1999, the applicant/decree holder had filed an execution case which was registered as Execution Case No. 1-A/76. THE aforesaid execution case was dismissed on 26-4-2000 for want of prosecution. Thereafter, the applicant/decree holder once again initiated fresh execution proceedings on 24-7-2000. THE aforesaid unregistered execution proceedings were dismissed for want of prosecution on 27-11-2000. Against aforesaid order, the applicant preferred miscellaneous appeal, namely, M.A. No. 6/2000 before the Additional Judge to the Court of 1st Additional District Judge, Balaghat along with an application under Section 5 of the Limitation Act, 1963 on 21-9-2007. THE Appeal Court vide order dated 22-7-2008, dismissed the appeal preferred by the applicant on the ground that proceeding initiated under Order 21 Rule 105 of the Civil Procedure Code are barred by limitation and provisions of Section 5 of the Limitation Act, 1963 do not apply to the execution proceedings. Accordingly, the order passed by the Executing Court was affirmed. Shri Ravish Agrawal, learned Senior Counsel has drawn the attention of this Court to the provisions of Order 21 as well as various provisions contained in Chapter X of the M.P. Civil Court Rules, 1961. Learned Counsel has submitted that on 27-11-2006, i.e., the date on which the application for execution was dismissed was not a date fixed for hearing. The application for execution has been dismissed in exercise of inherent powers and not under the provisions of Order 21 of Civil Procedure Code, and therefore, the application for its restoration could also be made by invoking inherent powers of the Court for which no time limit is prescribed. The application for execution has been dismissed in exercise of inherent powers and not under the provisions of Order 21 of Civil Procedure Code, and therefore, the application for its restoration could also be made by invoking inherent powers of the Court for which no time limit is prescribed. In support of his submissions, learned Senior Counsel has placed reliance on the decisions rendered in the cases of Khoobchand Jain and another Vs. Kashi Prasad and others, AIR 1986 MP 66 , Arjun Prasad Vs. Sameer Jahan Begum, AIR 2008 (NOC) 882 (All), D. Radhakrishnan Vs. State of Kerala and others, 2006 NOC 678 (Ker) and Smt. Vithabai G. Ghodake and another Vs. United Western Bank Ltd. and others, AIR 2003 Karnataka 266. Learned Senior Counsel further submitted that the application for execution which was not even registered, was dismissed under inherent power, therefore, the question of limitation does not arise and the Courts below erred in not appreciating this aspect of the matter. ( 3. ) ON the other hand, Shri Vivek Mishra, learned Counsel for the non-applicant while placing reliance on the decision of Supreme Court in Damodaran Pillai and others Vs. South Indian Bank Ltd., AIR 2005 SC 3460 , referred to the Paragraphs 14 to 17 of the judgment and has submitted that the provisions of Section 5 of the Limitation Act do not apply to execution proceedings and an application under Section 5 of the Limitation Act is not maintainable in proceedings arising under Order 21 of the Civil Procedure Code. Therefore, the inherent power of the Court cannot be invoked. In reply, learned Senior Counsel for the applicant has fairly stated that the provisions of Section 5 of the Limitation Act do not apply to proceedings under Order 21 of the Civil Procedure Code in view of decision of the Supreme Court in Damodaran Pillai (supra). ( 4. ) I have considered the submissions made on both sides. The singular issue which arises for consideration in the instant case is whether the order dated 27-11-2000 dismissing the application for execution was passed in exercise of inherent powers or under the provisions of Order 21 rule 105 (2) of the Civil Procedure Code. Before proceeding further it would be apposite to notice certain statutory provisions. Order 21 of the Civil Procedure, 1908 deals with execution of decree and orders. Before proceeding further it would be apposite to notice certain statutory provisions. Order 21 of the Civil Procedure, 1908 deals with execution of decree and orders. Order 21 Rule 10 of the Civil Procedure Code provides for an application for execution. Order 21 Rule 11(1) of the Civil Procedure Code deals with oral application where as Order 21 Rule 11 (2) of the Civil Procedure Code deals with written application. Order 21 Rule 11 (3) of the Civil Procedure Code provides that the Court to which an application is made under sub-rule (2) may require the applicant to produce a certified copy of the decree. Order 21 Rule 17 of the Civil Procedure Code prescribes the procedure on receipt of an application for execution of the decree. Sub-rule (1) of Rule 17 of Order 21 of the Civil Procedure Code empowers the Court to direct the decree holder to remedy the defect in the application either then and there or within a time to be fixed by it. Order 21 Rule 17 (4) of Civil Procedure Code provides that when the application is admitted, the Court shall enter in the proper register a note of the application and the date on which it was made, and shall, subject to the provisions hereinafter contained, order execution of the decree according to the nature of the application. By Code of Civil Procedure (Amendment) Act, 1976, which came into force with effect from 1-2-1977, the provisions of Rules 104 to 106 have been incorporated in Order 21 of the Civil Procedure Code. Order 21 Rule 105 (1) of the Civil Procedure Code provides that the Court before which an application under any of the foregoing rules of this order is pending, may fix a date for the hearing of the application. Order 21 Rule 105 (2) of the Civil Procedure Code provides that where on the day fixed for 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 should be dismissed. ( 5. ) IN exercise of power under Article 227 of the Constitution of India read with Section 23 of the M.P. Civil Court Act, 1958, the High Court of Madhya Pradesh has framed rules which are known as "Madhya Pradesh Civil Court Rules, 1961". ( 5. ) IN exercise of power under Article 227 of the Constitution of India read with Section 23 of the M.P. Civil Court Act, 1958, the High Court of Madhya Pradesh has framed rules which are known as "Madhya Pradesh Civil Court Rules, 1961". Chapter X deals with execution of the decree. Rule 187 provides that filing of copy of decree along with application for execution is not compulsory, but if it is not possible to verify the correctness of the particulars in the application for execution from the Court register, the Court may ask the applicant to produce the certified copy. Rule 188 mandates that on receipt of an application for execution, an order sheet shall be attached to it at once and a short date, ordinarily three days ahead, shall be fixed for appearance of the applicant. IN the mean time, the execution clerk shall check the application and endorse on it a report certifying that he has done so and showing in detail the defects, if any, discovered by him. The application shall be put up by him for the Judge's on the date fixed. Rule 190 (2) of the Rules provides that if the particulars of the application correspond with the entries in the register of civil suits, etc. or if the applicant accepts those entries as correct and amends his application accordingly, an order for execution should at once be made. If any discrepancy between the entries in the application and those in the register cannot otherwise be reconciled, the admission of the application should be deferred pending a reference to the previous records. ( 6. ) IN the light of the statutory provisions referred to supra, the facts of the case may be seen. The application for execution was filed by the applicant/ decree holder on 24-7-2010 on 24-7-2010, the Executing Court directed the execution clerk to submit the report and fix the case for 1-8-2000. On 1-8-2000, the Executing Court observed that decree holder has not filed the copy of the judgment and decree. Accordingly, on a prayer being made by the Counsel for decree holder, the case was fixed for 14-9-2000 for filing the true copy of the judgment and decree. On 14-9-2000, again on prayer made by Counsel for the applicant/decree holder, the proceedings were adjourned to 4-10-2000. Accordingly, on a prayer being made by the Counsel for decree holder, the case was fixed for 14-9-2000 for filing the true copy of the judgment and decree. On 14-9-2000, again on prayer made by Counsel for the applicant/decree holder, the proceedings were adjourned to 4-10-2000. On 4-10-2000, since the Presiding Officer was on leave, therefore, the proceedings in the execution case were adjourned to 16-10-2000. However, once again on a prayer made by the Counsel for the applicant on 16-10-2000, the proceedings were adjourned for 16-11-2000. On 16-11-2000, once again the time was sought for filing the certified copy of judgment and decree. Accordingly, the proceedings were adjourned by way of last indulgence to 27-11-2000 for filing of the certified copy of the decree. However, on 27-11-2000, the application for execution was dismissed for want of prosecution. Thus, from perusal of the order sheet of the proceedings, following facts emerge :- (i) The application for execution filed by the applicant was not registered; (ii) No efforts were made to verify the correctness of the particulars in the application for execution from the Court register; (iii) On 16-11-2000, the proceedings in the execution case were fixed for 27-11-2000 for filing the certified copy of the decree; (iv) Thus, 27-11-2000 was not a date of hearing within the scope and ambit of Order 21 Rule 105 (2) of the Civil Procedure Code. ( 7. ) THUS, from the facts narrated supra, leave no iota of doubt that the date on which the application for execution was dismissed for default of appearance of the decree holders was not a date of hearing within the meaning of Order 21 Rule 105 (2) of the Civil Procedure Code as the proceedings in the execution were fixed only for filing the certified copy. THUS, the irresistible conclusion is that the dismissal of the execution application in default of appearance was made in exercise of inherent powers of the Court. After, the dismissal of the execution of the application under the inherent powers of the Court, the application for its restoration has to be entertained by invoking inherent powers of the Court. For invocation of inherent powers of the Court, no time limit is prescribed. Reference in this connection may be made to the decision in the case of Khoobchand Jain (supra). For invocation of inherent powers of the Court, no time limit is prescribed. Reference in this connection may be made to the decision in the case of Khoobchand Jain (supra). THUS, the Appeal Court committed an error in dismissing the appeal only on the ground that provisions of Limitation Act do not apply to execution proceedings. It is well settled in law that for the fault or negligence on the part of the Counsel a party should not be penalized. See : Rafiq and another Vs. Munshilal and another, AIR 1981 SC 1400 and Secretary, Department of Horticulture, Chandigarh and another Vs. Raghu Raj, AIR 2009 SC 514 ]. THUS, the execution proceedings initiated by the applicant deserves to be restored. ( 8. ) FOR the aforementioned reasons, the order passed by the Appeal Court as well as order dated 27-11-2000 cannot be sustained in the eye of law. Accordingly, the order dated 22-7-2008 as well as the order dated 27-11-2000 are hereby quashed. The Executing Court is directed to proceed further with the execution proceedings. In the result, the revision succeeds and is hereby allowed.