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Madhya Pradesh High Court · body

2019 DIGILAW 650 (MP)

Narayan Prasad v. Mohan Singh (Dead) through LR

2019-09-09

VISHAL MISHRA

body2019
ORDER 1. The present petition has been filed by the petitioner challenging the order dated 26.11.2014 passed by Additional Civil Judge Class-I Ganj Basoda in case No. 97A/86/13 in Execution Decree, whereby the application filed under section 5 of the Limitation Act was allowed. 2. It is alleged by the learned counsel for the petitioner a civil suit was filed for recovery of possession and permanent injunction on 18.2.1986 the Civil Suit was finally decreed on 5.4.1994 and an application u/O.XXI rule 11 CPC for execution of judgment and decree was filed by the respondent No. 1 alongwith an application under section 5 of the Limitation Act alleging therein that the decree could not be executed within 12 years owing to the fact he was minor at that time, on attaining the majority he has preferred an application for execution of the decree. It is further submitted that the knowledge regarding passing of the judgment and decree for the first time came to him in the year 2012, thereafter he has applied for obtaining the certified copies of the decree and has filed the proceedings. It is further alleged that the respondent No. 1 has taken a ground of his mental illness and the fact that the father of the respondent No. 1/plaintiff passed away in the year 1997 therefore, as he was having no knowledge about the judgment and decree, therefore the application for execution of decree could not be filed within time. It is alleged by counsel for the petitioners that the sole question before the Hon'ble High Court for consideration is whether the provisions of Limitation Act are applicable to the proceedings u/O. XXI rule 11 CPC. It is alleged that the Hon'ble Supreme Court in the case of Damodaran Pillai and others v. South Indian Bank Ltd., reported in 2005 (7) SCC 300 has dealt with aforesaid proposition and has held that the Civil Court in absence of any express powers cannot condone the delay. The applicability under section 5 of the Limitation Act was also considered and it was held that the application under section 5 of the Limitation is not maintainable in the proceedings under Order XXI of the Code. It is further argued that the decree was passed on 5.4.1994 for which the execution has been filed on 18.7.2013 alongwith an application under section 5 of the Limitation Act. It is further argued that the decree was passed on 5.4.1994 for which the execution has been filed on 18.7.2013 alongwith an application under section 5 of the Limitation Act. The learned Executing Court has committed a grave error in allowing the application and taking cognizance in the matter, whereas the provisions of the Limitation Act specifically barred under the code. He has relied upon the judgment passed by the Hon'ble High Court in the case of Hafiz Noorbux (dead) through L.Rs. Abdul Rhoof alias Waqar Quresh and ors. v. Dattatrey Joshi and ors., reported in 2008 (2) M.P.H.T. 215 and the Hon'ble High Court in case of Bherulal and ors. v. Mohd. JamiL and ors., reported in 2006 (3) M.P.H.T. 501 and has argued that in absence of any specific provisions providing the Applicability of Limitation Act to Order XXI of the CPC the order passed by learned trial Court is illegal and against the settled principles of law. Accordingly, he has prayed for quashment of the impugned order. 3. Per contra, learned counsel appearing for the respondent No. 1 has argued that order passed by learned trial Court is well reasoned and justified order. He has drawn attention of this Court to section 5 of the Limitation Act which and has argued that the provisions of section 5 of the Limitation act as applicable in the case of respondent No. 1 as he was not of unsound mind and was minor at the time when the decree was passed and was not having any knowledge, therefore, the provisions of Limitation Act were applicable in his case and the application has rightly been filed. It is further contended that learned trial Court has rightly condoned the delay and taken the matter into cognizance. Therefore, he has prayed for dismissal of the application. 4. Heard learned counsel for the parties and perused the record. 5. From the record, it is an admitted fact the judgment and decree for which the execution was passed on 5.4.1994 and at the time father of respondent No. 1 was alive. He was passed away in the year 1997. Therefore, he has prayed for dismissal of the application. 4. Heard learned counsel for the parties and perused the record. 5. From the record, it is an admitted fact the judgment and decree for which the execution was passed on 5.4.1994 and at the time father of respondent No. 1 was alive. He was passed away in the year 1997. As per the contention of the respondent No. 1, it is alleged in the application before learned trial Court the respondent No. 1 was having no knowledge about passing of the judgment and decree up to year 2012 and for the first time when the fact of judgment and decree came to his knowledge in the year 2012 immediately on 7.3.2013 an application for obtaining certified copy was filed which was received on 19.3.2013 and immediately, thereafter the execution proceedings were filed before the learned Executing Court. The application under section 5 of the Limitation Act was also filed. The learned trial Court has considered the application under section 5 of the Limitation and finding the reason for delay caused to be justified has allowed the application. 6. The provisions of section 5 of the Limitation Act is required to be seen. 5. Extension of prescribed period in certain cases. - Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation.- The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section. 7. Hon'ble Supreme Court in the case of Damodaran Pillai and Others v. South Indian Bank Ltd., reported in 2005 (7) SCC 300 has held as under; "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. 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. 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. 8. Hon'ble High Court in the case of Hafiz Noorbux (dead) through L.Rs. Abdul Rhoof alias Waqar Quresh and ors. v. Dattatrey Joshi and ors., reported in 2008 (2) M.P.H.T. 215 has held as under; In the case of Damodaran Pillai and others v. South Indian Banch Ltd, (2005) 7 SCC 300 , the execution petition was dismissed for default on 1-11-90 and application for restoration of the said execution petition was filed on 4.4.1998. Restoration of execution was allowed by the Executing Court on 6.10.2001. 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 XXI 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. 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. 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 or 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." 9. Hon'ble High Court in the case of Bherulal and ors. v. Mohd. A fortiori for the said purpose, inherent power of the Court cannot be invoked. 21. Hardship or 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." 9. Hon'ble High Court in the case of Bherulal and ors. v. Mohd. JamiL and ors., reported in 2006 (3) M.P.H.T. 501 and reads as under; "6. In the circumstances of the case the ex parte decree under reference became enforceable right from the time it was passed. Article 136 provides that the execution application is to be moved within 12 years from enforceability and not from executionability. The ex parte decree became enforceable right at the time when it was passed and, therefore, when admittedly the application for execution under reference was moved beyond 12 years from the date of the passing thereof, the same is barred by time and the doctrine of merger not being applicable, the limitation is not saved. I reached this conclusion after thoughtful consideration of the above referred decisions." 10. In the present case, the application was filed under Order XXI for execution of the decree alongwith application under section 5 of the Limitation Act. The reply to application under section 5 of the Limitation Act was filed by the counsel for the petitioner/defendant and has objected that in provision of Order XXI, the limitation Act provisions are not applicable. It is a trite law that the limitation period starts from the date of decree. In the present case, the decree was passed on 5.4.1994 and at the time father of the respondent No. 1 was alive. He has not taken any steps during his life time to file the execution proceedings. The son has filed the execution proceeding along with section 5 of the Limitation Act explaining the delay to the effect that he was minor at the time when the decree was passed and he was having no knowledge about the judgment and decree which was passed by the Court and for the first time in the year 2012 it came to his knowledge that the judgment and decree was passed in the 1994. Thereafter, applying for certified copy of the case which obtained by him on 19th March, 2013 the application for execution of the decree was filed. Thereafter, applying for certified copy of the case which obtained by him on 19th March, 2013 the application for execution of the decree was filed. He has further taken the ground regarding his mental illness that he was insane, along with the application the medical documents were filed, one document was filed of the year January 1994 and other document was filed of July, 2003, no other document regarding continuation of his illness up to the year 2012 was filed by the respondent No. 1 before the trial Court. Even otherwise as per the law laid down by Hon'ble Supreme Court in aforesaid cases, there is no applicability of section 5 of the Limitation Act in execution proceedings. Even the delay in filing the execution proceedings is not being properly explained. Thus, once there is no applicability of section 5 of the Limitation Act in execution proceedings the, application filed under section 5 of the Limitation Act itself was not maintainable. Accordingly, the order passed by learned trial Court is illegal/incorrect and unsustainable and is hereby set aside. Civil revision is allowed. No order as to cost