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2021 DIGILAW 328 (TS)

Mediciti Hospital v. D. Prasada Rao

2021-11-09

UJJAL BHUYAN

body2021
ORDER: Heard Mr.A.Venkatesh, learned counsel for the petitioner. 2. This revision petition has been filed under Article 227 of the Constitution of India against the order dated 27.04.2021 passed by the court of Additional Metropolitan Sessions Judge, Nampally, Hyderabad in E.A.No.1 of 2021 arising out of E.P.No.2 of 2018. 3. Dr.D.Prasada Rao, as the plaintiff, had filed O.S.No.197 of 1998 wherein Share Medical Care and the petitioner/Mediciti Hospital were arrayed as defendants. The suit was decreed by judgment and order dated 23.03.2006. Unfortunately, a copy of the judgment and order has not been annexed to the revision petition. On a query by the court, learned counsel for the petitioner, who is the judgment debtor, submits that it was a money decree. From the materials on record, it is seen that the suit was decreed by directing defendant Nos.1 and 2 to pay a sum of Rs.29,25,657.00 together with interest @ 12% per annum from the date of filing the suit till the realization of the amount. Plaintiff, as the decree holder, initiated execution proceedings being E.P.No.2 of 2018. In the execution proceedings, though learned counsel for the judgment debtor No.2 was present, counter was not filed. Therefore, the executing court passed an order on 20.09.2019 ordering closure of filing of counter and calling the decree holder to tender evidence on 27.09.2019. 4. Petitioner filed a petition under Order XXI Rule 106 of the Code of Civil Procedure, 1908 for recall of the said order and to allow judgment debtor No.2 to file counter. Since there was delay of 142 days in filing the said petition, an application under Section 5 of the Limitation Act, 1963 was filed read with Section 151 of the Code of Civil Procedure, 1908 for condonation of delay. 5. By the impugned order dated 27.04.2021, learned court below dismissed the petition for condonation of delay. 6. Aggrieved, the present revision petition has been filed. 7. At the outset, it may be mentioned that the related execution proceedings pertain to execution of a money decree dated 23.03.2006. More than 15 years have gone by till date and the decree has still not been complied with. It appears that defendants have also not challenged the judgment and order in appeal. Thus, the said judgment and order dated 23.03.2006 has attained finality. In the execution proceedings, counter was not filed by the petitioner, who is judgment debtor No.2. More than 15 years have gone by till date and the decree has still not been complied with. It appears that defendants have also not challenged the judgment and order in appeal. Thus, the said judgment and order dated 23.03.2006 has attained finality. In the execution proceedings, counter was not filed by the petitioner, who is judgment debtor No.2. Accordingly, the opportunity for filing counter was closed and the execution petition was fixed for tendering of evidence by the decree holder. It was thereafter that the related application under Order XXI Rule 106 of the Code of Civil Procedure, 1908 was filed, accompanied by the application for condonation of delay. 8. Learned court below rejected the said application for condonation of delay by holding as follows: Perused the record. As per the record, the petition is coming for counter of the petitioner since 14.08.2019 and the petitioner was set ex parte on 20.09.2019 and this application is filed on 23.02.2021. The petitioner pleaded his ill health to give material instructions to his counsel for filing counter and to take steps for filing the present application. However, for the reasons best known to the petitioner, no material/record is filed in support of the same. Further, the petitioner has excluded the period in computing the delay on the ground that the limitation is extended by the Hon’ble Supreme Court in calculating the period. However, the Hon’ble Supreme Court held that in computation of the period, in cases where the limitation would have expired during the period between 15.03.2020, the benefit excluding the period and having 90 days period will apply. In this context, it is pertinent to note that Rule 106(3) of Order XXI specifies that within 30 days from the date of order or from the date of knowledge, the application for setting aside the orders can be filed. As the counsel for the petitioner was present on the date of order, the knowledge of the order is clear, as such the petition should have been filed by 20.10.2019 within 30 days. As this petition is filed long after the period prescribed, firstly this period should also been included for computing the period of delay. As the counsel for the petitioner was present on the date of order, the knowledge of the order is clear, as such the petition should have been filed by 20.10.2019 within 30 days. As this petition is filed long after the period prescribed, firstly this period should also been included for computing the period of delay. Howsoever, as the provision is contemplating specific period to file condone petition and as the petitioner failed to file the application within such prescribed time, and as the authority of the Hon’ble Supreme Court fortified that the application of Section 5 of Limitation Act is not maintainable to condone the delay beyond the period stipulated in the provision, this petition fails on merit. In the result, the petition is dismissed”. 9. Learned counsel for the petitioner submits that President of the petitioner viz., Dr.V.Malakonda Reddy is aged about 95 years and his civil liberties are at stake. He has also referred to a Full Bench Judgment of this court in the case of CH.KRISHNAIAH v. CH.PRASADA RAO, 2009(4) APLJ 1 (HC) to contend that provisions of Section 5 of the Limitation Act, 1963 would be attracted in the case of delay in filing the application to set aside the ex parte order under Order XXI Rule 106 of the Code of Civil Procedure, 1908. 10. Order XXI of the Civil Procedure Code, 1908 deals with execution of decrees and orders. Rule 22 provides for issuance of notice to show-cause against execution in certain cases. Under Rule 23(1), where the person to whom notice is issued under Rule 22 does not appear or does not show-cause to the satisfaction of the court as to why the decree should not be executed, the court shall order the decree to be executed. Rule 105 is concerned with hearing of an application filed under any of the Rules of Order XXI. Under sub-rule (1), where any such application is pending, the court may fix a day for hearing of the application. As per sub-rule (2), if the applicant is absent on such hearing, the court may make an order that the application be dismissed. On the other hand, if the applicant appears and the opposite party does not appear despite notice, then under sub-rule (3), the court may hear the application ex parte and pass such order as it thinks fit. As per sub-rule (2), if the applicant is absent on such hearing, the court may make an order that the application be dismissed. On the other hand, if the applicant appears and the opposite party does not appear despite notice, then under sub-rule (3), the court may hear the application ex parte and pass such order as it thinks fit. 10.1 Rule 106 deals with setting aside orders passed ex parte. As per sub-rule (1), the applicant against whom an order is made under those provisions mentioned in paragraph 10, may apply to the court to set aside the order. If the applicant can satisfy the court that there was sufficient cause for his non-appearance when the application was called for hearing, the court shall set aside such order on such terms as to costs or otherwise as it thinks fit and shall appoint a day for further hearing of the application. Sub-rule (2) states that no such order shall be passed unless notice of the application is served on the other party. Sub-rule (3), however, provides that an application under sub-rule (1) shall be made within 30 days. 11. In CH.KRISHNAIAH (supra), a Full Bench of this court noticed that by reason of the amendment made by the Andhra Pradesh High Court in 1991, sub-rule (4) has been added in Rule 106 which provides that provisions of Section 5 of the Limitation Act, 1963 shall apply to all applications under sub-rule (3). Therefore, the Full Bench held Order XXI Rule 106 (4) of the Civil Procedure Code, 1908 enables a party to file an application under Section 5 of the Limitation At, 1963 seeking condonation of delay in filing an application to set aside an ex parte order under Order XXI Rule 106(1). 12. While there is no dispute to the proposition of law laid down in Ch.Krishnaiah’s case, the fact is that whether the delay should be condoned or not would depend upon the facts and circumstances of each case. In the facts and circumstances of this case, as adverted to above, the delay in filing the petition under Order XXI Rule 106 of the Code of Civil Procedure, 1908 was rightly not condoned by the court below. As pointed out by the court below, only bald statements were made without any supporting materials to support the plea for condoning the delay. As pointed out by the court below, only bald statements were made without any supporting materials to support the plea for condoning the delay. While the court has the power to condone the delay, but whether delay should be condoned or not would depend upon the facts and circumstances of each case. In the present case, the delay was rightly not condoned by the court below. In that view of the matter, this court finds no error or infirmity in the decision of the court below. Moreover, this is not a case where the High Court should exercise its supervisory jurisdiction under Article 227 of the Constitution of India. 13. That being the position, this court finds no material irregularity in the court below declining to condone the delay. As pointed out above, already 15 years have elapsed since passing of the judgment and decree and the decree holder is yet to enjoy the fruits of the success of his litigation. Such a situation cannot be countenanced. 14. In view of the above, the court is not inclined to entertain the revision petition. The revision petition is, accordingly, dismissed. 15. Miscellaneous applications, if any pending, shall stand dismissed. 16. No costs.