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2015 DIGILAW 21 (HP)

Capt. Padam Singh v. Rajni Sarin

2015-01-05

MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN

body2015
Judgment Mansoor Ahmad Mir, J. This Letters Patent Appeal is directed against the order dated 21st September, 2006, passed by the learned Single Judge in O.M.P. No. 226/2006, arising out of Execution Petition No. 31 of 2001, whereby the petition for restoration of the objections was dismissed as time barred. 2. The civil proceedings which have given birth to the present LPA have a chequered history. It appears that the decree holders/plaintiffs have been dragged by the appellant from pillar to post and post to pillar. Finally, a decree was passed, which was not discharged or satisfied, constraining the decree holders to file Execution Petition No. 31 of 2001, in which objections were filed by the judgment debtor, by the medium of application, under Section 47 read with Order 21 Rule 90 and Section 151 of the CPC, for declaring the sale null and void, were dismissed in default three times, i.e., on 7.8.2002, 28.2.2003 and 22.9.2005 and was restored so many occasions. The petition again came to be dismissed in default on 2.1.2006, on the fourth time, and an application for restoration was made on 25.7.2006, alongwith limitation petition, was resisted by the decree holders, before the learned Single Judge, on the ground that it was barred by time. 3. The learned Single Judge/Executing Court examined the said provision of the Limitation Act and Order 21 of the C.P.C, dismissed the applications for condonation of delay and restoration, vide impugned order. 4. The appellant/judgment debtor is caught by his own acts and conduct, the details of which are given in the impugned order. The records of the file do reveal how judgment debtor/appellant has caused the delay in deciding the Execution Petition, the applications and the appeal. 5. The short question involved in this appeal is whether the provisions of Section 5 of the Limitation Act is applicable? 6. While going through the mandate of Section 5 of the Limitation Act, one comes to an inescapable conclusion that Section 5 of the Limitation Act is not applicable to the execution proceedings under Order 21 CPC and the impugned order came to be rightly made. This view is fortified by the apex Court judgment rendered in Damodaran Pillai and others vs. South Indian Bank Ltd. (2005) 7 SCC 300 . It is profitable to reproduce paras 6, 16, 17, 20, 21 and 25 of the said judgment herein: “6. Mr. This view is fortified by the apex Court judgment rendered in Damodaran Pillai and others vs. South Indian Bank Ltd. (2005) 7 SCC 300 . It is profitable to reproduce paras 6, 16, 17, 20, 21 and 25 of the said judgment herein: “6. Mr. P. Krishnamoorthy, learned Senior Counsel appearing on behalf of the appellant raised a short question in support of this appeal contending that in terms of sub-rule (3) of Rule 106 of Order XXI of the Code of Civil Procedure 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 urged that the Executing Court could not have, thus, condoned the delay in exercise of its inherent power or otherwise. 7-15… …… ……. …. 16. An application under Section 5 of the Limitation Act is not maintainable in a proceeding arising under Order XXI of the Code. Application of the said provision has, thus, expressly been excluded in a proceeding under Order XXI of the Code. In that view of the mater, 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. 17. In Ayappa Naicker Vs. Subbammal & Anr. [1984 (1) Madras Law Journal Reports 214], Mohan, J. (as His Lordship then was) opined: "Therefore having regard to the above language, it was permissible to have such a provision wherein the position is clearly changed at present. Section 5 of the present Limitation Act, 1963, states that any appeal or any application under any of the provisions of Order 21, Civil Procedure Code, 1908, may be admitted after the prescribed period if the appellant or the appellant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period. The Explanation is omitted as unnecessary. Therefore, with reference to applications under Order 21, Civil Procedure Code, there is the statutory bar in applying section 5 of the Limitation Act. It may also be relevant to note section 32 of the Limitation Act before it was repealed by Central Act LVI of 1974. It is stated under that section that the Indian Limitation Act, 1908 is hereby repealed. It may also be relevant to note section 32 of the Limitation Act before it was repealed by Central Act LVI of 1974. It is stated under that section that the Indian Limitation Act, 1908 is hereby repealed. Therefore, after 1st January, 1964, sub-rule (4) of rule 105 of Order 21, Civil Procedure Code, could no longer be applied, because of the express language of section 5 of the Limitation Act. That is why the Central Code, in rule 106 of Order 21, Civil Procedure Code, did not make any reference to the same saying that section 5 of the Limitation Act would be applicable. In view of this, the order of the Court below ought to be upheld." It was further held: "The question of invoking inherent powers under section 151, Civil Procedure Code, does not arise in this case. That is because of the specific provision contained under rule 106 of Order 21, Civil Procedure Code. If, therefore, there is repugnancy between the Central Code, under rule 106, and the Madras Amendment under sub-rule (4) of rule 105 of Order 21, it is section 97 of the Civil Procedure Code, in relation to repeal and savings that would apply. That says that any amendment made, or any provision inserted in the principal Act by a State Legislature or a High Court before the commencement of this Act shall except in so far as such amendment or provision is consistent with the provisions of the principal Act, as amended by this Act, stand repealed." We respectfully agree with the said opinion. 18-19… ……. ….. 20. The principles underlying the provisions prescribing limitation are based on public policy aiming at justice, the principles of repose and peace and intended to induce claimants to be prompt in claiming relief. 21. Hardship or injustice may be a relevant consideration in applying the principles of interpretation of statute, but cannot be a ground for extending the period of limitation. 22-24…. …… …… 25. For the reasons aforementioned, the impugned judgment cannot be sustained which is set aside accordingly. The Appeal is allowed. No costs.” 7. The law helps a person, who is vigilant and would not come to the rescue of a person/litigant, who is habitual absentee, remains in deep slumber and plays hide and seek. 8. 22-24…. …… …… 25. For the reasons aforementioned, the impugned judgment cannot be sustained which is set aside accordingly. The Appeal is allowed. No costs.” 7. The law helps a person, who is vigilant and would not come to the rescue of a person/litigant, who is habitual absentee, remains in deep slumber and plays hide and seek. 8. Having said so, the appeal merits dismissal and is dismissed as such, alongwith pending applications, if any.