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2024 DIGILAW 1792 (GUJ)

Gautam Sarabhai v. Navinbhai Raichandbhai Thakkar

2024-08-30

J.C.DOSHI

body2024
JUDGMENT : J.C. DOSHI, J. 1. Heard learned advocate Mr.Dipak R. Dave appearing for the revisionist and the opponent – Party-in-person. 2. In this revision filed under Section 115 of the Code of Civil Procedure, 1908 (for short ‘CPC), the revisionist has prayed following reliefs: “(A) This Hon’ble Court may be pleased to admit and allow the present application; (B) This Hon’ble Court may be pleased to quash and set aside impugned order dated 29.02.2024 passed by the learned City Civil Court No.18, Ahmedabad in Civil Misc. Application No.611 of 2023 at Annexure-F to the present application, and further may be pleased to reject the delay condonation application filed by the opponent herein; (C) Pending the admission hearing and final disposal of this application, this Hon’ble Court may be pleased to stay the execution, implementation and operation of impugned order dated 29.02.2024 passed by the learned City Civil Court No.18, Ahmedabad in Civil Misc. Application No.611 of 2023 at Annexure-F to the present application and further may be pleased to restrain the Executing Court from proceedings further with the Restoration Application;” 3. The factual matrix of the case are as under. 3.1 On 29.11.1997, arbitral award was passed in favour of the respondent under the Arbitration Act, 1940. The application challenging the said order came to be dismissed by learned City Civil Court vide order dated 22.02.1999. The respondent filed Execution Petition No.286 of 1999 for executing the award. Upon furnishing security, the Executing Court vide order dated 02.07.1999 stayed the execution proceedings. The First Appeal filed against the said order came to be dismissed on 13.04.2011. On 02.11.2012, Execution Petition No.286 of 1999 was dismissed for non-prosecution. The respondent filed Commercial Darkhast No.411 of 2023 which was later on withdrawn by the respondent. The learned City Civil Court vide order dated 29.02.2024 allowed the delay condonation application in filing the restoration application. Hence, the present revision. 4. In essence, the revisionist has challenged the order passed by the learned City Civil Court in Civil Misc. Application No.611 of 2023 whereby the learned City Civil Court exercising the powers under Section 5 of the Limitation Act, 1963 has condoned the delay of ten years, eleven months and six days in filing the restoration application to restore Execution Petition No.286 of 1999. 5. Application No.611 of 2023 whereby the learned City Civil Court exercising the powers under Section 5 of the Limitation Act, 1963 has condoned the delay of ten years, eleven months and six days in filing the restoration application to restore Execution Petition No.286 of 1999. 5. Learned advocate Mr.Dipak Dave takes this Court through the dates and events took place in the matter and submitted that opponent has filed execution petition being Execution Petition No.286 of 1999 before the learned Court below for execution of the arbitral award. He would further submit that upon furnishing of the security, the Executing Court was pleased to stay the execution proceedings on 26.04.2001. He would further submit that the award passed by the arbitrator has taken the shape of decree as it is approved by the City Civil Court and has been confirmed upto Hon’ble Supreme Court. He would further submit that the execution petition was listed on the cause-list on the learned Trial Court on various dates. Chamber summons was also moved at Exhibit-27 and 28 by decree holder. But ultimately chamber summons came to be dismissed. Later on as the opponent was not remaining present, the execution was dismissed in exercise of powers under Order 21 Rule 105 of CPC as well as Ahmedabad City Civil Court Rules 239, on 02.11.2012. He would further submit that thereafter the opponent has filed fresh Darkhast being Commercial Darkhast No.411 of 2023 before the learned City Civil Court, in which both parties have argued their case but the opponent has withdrawn the darkhast with a view to file a new execution petition. 6. The main plank of argument of learned advocate Mr.Dipak Dave is that in view of Order 21 Rule 106 of CPC, the limitation for restoration of the Darkhast which is dismissed for non- prosecution is 30 days and in view of inbuilt limitation under Order 21 Rule 106 of CPC, Section 5 of the Limitation Act, 1963 is excluded from operation. He would submit that learned Trial Court has totally missed to read this provision while condoning delay of more than 10 years in filing the restoration application to restore the execution petition. Learned advocate Mr.Dave refers to and rely upon the judgment of Hon’ble Apex Court in the case of Damodaran Pillai Vs. South Indian Bank Limited – 2005 (7) SCC 300 , to buttress his argument. 7. Learned advocate Mr.Dave refers to and rely upon the judgment of Hon’ble Apex Court in the case of Damodaran Pillai Vs. South Indian Bank Limited – 2005 (7) SCC 300 , to buttress his argument. 7. Learned advocate Mr.Dipak Dave would further submit that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. To buttress this contention, learned advocate Mr.Dave relied upon the judgment of Basawaraj and another vs . Special Land Acquisition Officer - 2013 (14) SCC 81 . 8. In nutshell, learned advocate Mr.Dipak Dave submits that the opponent Party-in-person was knowing fully well that his Darkhast being Execution Petition No.286 of 1999 was dismissed for non-prosecution by the Court below on 02.11.2012, yet did not filed restoration application within stipulated time. The presumption that he was knowing fully well that his Darkhast has been dismissed for non-prosecution could be established as the opponent Party-in-person has filed Commercial Darkhast No.411 of 2023 on 06.06.2023, but then withdrew it. He would submit that since Section 5 of the Limitation Act, 1963 has no application in Order 21 of the CPC, the order passed by the learned Trial Court is unjust, illegal and against settled principle of law which requires to be rectified by allowing this revision. 8.1 Upon above submissions, he would submit to allow this revision. 9. On the other hand, the party-in-person would submit that he runs from post to pillar for executing the award passed by the arbitrator. He would submit that firstly the award was approved by the learned City Civil Court on 22.02.1999. The First Appeal filed against such order was dismissed. He would further submit that during this proceeding, the revisionist has filed Summary Suit No.2457 of 1998 before the learned City Civil Court. The concerned Court has granted unconditional leave to defend to the opponent. He would further submit that meanwhile in Execution Petition No.286 of 1999, the revisionist appeared and filed application to stay the implementation and execution of the award on 27.10.1999. The concerned Court has granted unconditional leave to defend to the opponent. He would further submit that meanwhile in Execution Petition No.286 of 1999, the revisionist appeared and filed application to stay the implementation and execution of the award on 27.10.1999. Flat No.J/22 was offered as security and upon such security the learned City Civil Court passed the order in Summary Suit No.2457 of 1998 that till and until the judgment and decree arrived in First Appeal No.1300 of 1999 and till and until Summary Suit No.2457 of 1998 is disposed of, the Darkhast proceedings shall be stayed. He would further submit that in view of the said order which is informed to the Registrar, City Civil Court, Ahmedabad, the proceedings of Darkhast being Darkhast No.286 of 1999 is stayed. The party-in- person would submit that on 27.01.2011 and 28.01.2011, two applications were given by the decree-holder in the said Darkhast and prayed to proceed further in the Darkhast. On 11.11.2011, the Executing Court rejected both the applications in terms that the stay order is still operative. He would submit that on 13.04.2011, this Court has dismissed the First Appeal No.1300 of 1999. He would submit that without considering these chequered facts and without noticing the order dated 26.04.2011 and 11.11.2011, learned City Civil Court has dismissed the execution on 02.11.2012 for non-prosecution. He would submit that Summary Suit No.2457 of 1998 on change of jurisdiction became Regular Civil Suit No.268 of 2022 and transferred to the Small Causes Court which was dismissed on 25.04.2023. He would submit that in view of dismissal of the suit by the Small Causes Court as well as dismissal of the appeal by this Court, learned City Civil Court was required to proceed further in the Darkhast No.286 of 1999, but when the decree- holder went to inquired about the status of the Darkhast in Darkhast Department, he came to know that execution was dismissed on 02.11.2012. He would submit that the order itself is erroneous on its face since the Darkhast was stayed by the concerned Court and the stay remained operative till the dismissal of the summary suit as well as the appeal. He would submit that the Darkhast which was stayed cannot be dismissed for non-prosecution. Yet learned City Civil Court has passed the erroneous order which constrained the decree-holder Party-in- person to file restoration application. He would submit that the Darkhast which was stayed cannot be dismissed for non-prosecution. Yet learned City Civil Court has passed the erroneous order which constrained the decree-holder Party-in- person to file restoration application. However, since delay was caused, the opponent party-in-person filed application for condonation of delay in filing restoration application of Darkhast on 09.10.2023, which was rightly decided by learned City Civil Court. 9.1 Upon above submissions, the opponent party-in-person submits to dismiss this revision. 10. Learned advocates for both the parties have tendered their written synopsis which are taken on record. 11. Regard being had to the rival submissions of learned advocates for both sides, what could be noticed that learned City Civil Court on 02.11.2012 dismissed the Execution Petition No.286 of 1999 in exercise of powers under Rule 239 of the Ahmedabad City Civil Court Rules, 1961 read with Order 21 Rule 105 of the CPC. However, liberty has been granted to the petitioner to file fresh execution as per the rules. This order was never challenged before any higher Court by the opponent. The opponent party-in-person claims that the proceedings of the Execution Petition No.286 of 1999 was stayed upto 25.04.2023 i.e. on the day on which the summary suit was dismissed. He would submit that in view of this aspect since the stay was operative in the execution petition, learned City Civil Court was not legally entitled to dismissed the Darkhast for non- prosecution. The submission on the part of the opponent party- in-person is found to be doubtful on the ground that despite as per his submission stay was operative and continued till dismissal of the summary suit on 25.04.2023, he had moved two applications at Exhibit-27 and 28 on 11.11.2011 and also obtained judicial order. The opponent party-in-person could not make out any explanation that why he has preferred two applications at Exhibit-27 and 28 in execution petition despite the stay is operating during the currency of summary suit. Moreover, what could also be noticed that the summary suit was dismissed on 25.04.2023. Immediately thereafter the Commercial Darkhast No.411 of 2023 was filed by the opponent on 15.05.2023 which indicates that he was fully aware about the dismissal of his earlier Darkhast and thus he has filed the Commercial Darkhast. For the reasons best known to him, the opponent party-in-person withdrew the same on 24.11.2023. Immediately thereafter the Commercial Darkhast No.411 of 2023 was filed by the opponent on 15.05.2023 which indicates that he was fully aware about the dismissal of his earlier Darkhast and thus he has filed the Commercial Darkhast. For the reasons best known to him, the opponent party-in-person withdrew the same on 24.11.2023. Learned Commercial Court, City Civil Court at Ahmedabad permitted the opponent to withdraw the execution by passing order below Exhibit-1 and also discharged the decree. 12. On 04.01.2024, the opponent party-in-person filed Civil Application for condonation of delay (Annexure-C) in the Court below. Learned City Civil Court condoned the delay of 10 years, 11 months and 6 days which was prayed by the party-in-person. In view of that, question arise for determination that whether learned City Civil Court can invoke Section 5 of Limitation Act, 1963 to condone delay caused in filing the application for restoration of Darkhast proceeding. 13. At this juncture, firstly we refer to Order 21 Rule 105 of CPC 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.” 14. In view of Order 21 Rule 105(2), if on the day fixed for hearing and case is called out, the Court may pass an order to dismiss the execution petition in absence of the decree holder. Rule 239 of the Ahmedabad City Civil Court Rules, 1961 is also required to be read as under : “ 239. In view of Order 21 Rule 105(2), if on the day fixed for hearing and case is called out, the Court may pass an order to dismiss the execution petition in absence of the decree holder. Rule 239 of the Ahmedabad City Civil Court Rules, 1961 is also required to be read as under : “ 239. Non-prosecution of application for executio n – When a party does not proceed with the application for execution for a period of twelve months from the date of the filing of the application, the Registrar shall place the application before the Chamber Judge for dismissal for want of prosecution. The Chamber Judge may pass such orders thereon as he may think fit.” 15. The rule indicates that if application for execution is not proceeded for a period of 12 months, the Chamber Judge is entitled to pass necessary order including dismissal for want of prosecution. 16. Order 21 Rule 106 is also required to refer. It reads as under : “106. Setting aside orders passed ex parte, etc .—(1) The applicant, against whom an order is made under sub-rule (2) 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 he satisfies the Court that there was sufficient cause for his non-appearance whom the application was called on for hearing, the Court shall set aside the order or 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 applicant had knowledge of the order.]” 17. In view of above legal position, if an order is passed under Sub-rule (2) of Rule 105 of Order 21 of CPC, within 30 days the decree holder can move the Court for restoring the Darkhast. In view of above legal position, if an order is passed under Sub-rule (2) of Rule 105 of Order 21 of CPC, within 30 days the decree holder can move the Court for restoring the Darkhast. Thus, inbuilt limitation has been provided for restoration of the Darkhast which is dismissed for non-prosecution. 18. The opponent party-in-person invoked Section 5 of the Limitation Act, 1963 and sought delay condonation of 10 years, 11 months and 6 days for filing the restoration application. Section 5 of the Limitation Act, 1963 reads as under : “ 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.” 19. The Legislature has used the phrase “other than application under any of the provision of Order 21 of the CPC” clearly postulates that Section 5 of the Limitation Act, 1963 does not apply to any of the provision under Order 21 of the CPC. Thus, the application filed under Section 5 to restore the Darkhast proceedings was not maintainable. 20. In Damodaran Pillai (supra) , the Hon’ble Apex Court has examined this issue. Para 8 to 16 are relevant and they are reproduced as under : “8. It is not in dispute that the Execution Petition was dismissed in terms of the provisions of Rule 105 of Order XXI of the Code of Civil Procedure. Sub-rule (1) of the said Rule provides for fixing a day for hearing of the application; whereas sub-rule (2) thereof envisages that if on the day so 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. Sub-rule (3) of the said Rule postulates hearing of an application ex-parte in a case where the applicant appears and the opposite party to whom the notice has been issued by the Court does not. Sub-rule (1) of Rule 106 of Order XXI of the Civil Procedure Code provides for restoration of the application for default or setting aside of the order passed under sub-rules (2) & (3) of Rule 105 of Order XXI in the following terms: "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 he 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. 9. Sub-rule (3) of Rule 106 provides for the period of limitation for filing such an application which reads as under: "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." 10. The learned Executing Court allowed application of restoration filed by the Respondent herein on the ground that it acquired the knowledge about the dismissal of the Execution Petition only on 25.3.1998. 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 Rule 105, the starting period 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. 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, 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. 12. We may notice that the period of limitation has been fixed by the provisions of the Code and not in terms of the second schedule appended to the Limitation Act, 1963. 13. It is also not in dispute that the Kerala amendment providing for application of Section 5 of the Limitation Act in Order XXI, Rule 105 of the Code became inapplicable after coming into force of the Limitation Act, 1963, (Act LVI of 1964). 14. It is also trite that the civil court in absence of any express power cannot condone the delay. For the purpose of condonation of delay in absence of applicability of the provisions of Section 5 of the Limitation Act, the court cannot invoke its inherent power. 15. It is well-settled that when a power is to be exercised by a civil court under an express provision, the inherent power cannot be taken recourse to. 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.” 21. It is true that the opponent party-in-person is fighting for his relief for many years but his application under Section 5 of the Limitation Act, 1963 to file the application for restoration of the execution was not maintainable. A fortiori for the said purpose, inherent power of the court cannot be invoked.” 21. It is true that the opponent party-in-person is fighting for his relief for many years but his application under Section 5 of the Limitation Act, 1963 to file the application for restoration of the execution was not maintainable. The law of limitation may be harsh and may harshly affect the rights of the party but it has to be applied with all its rigour when the statute so intends. I may refer to para 12 of the judgment of Basawaraj and anothe r (supra) as under : “12. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds. “A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation.” The statutory provision may cause hardship or inconvenience to a particular party but the Court has no choice but to enforce it giving full effect to the same. The legal maxim “dura lex sed lex” which means “the law is hard but it is the law”, stands attracted in such a situation. It has consistently been held that, “inconvenience is not” a decisive factor to be considered while interpreting a statute.” 22. In view of the above reasons and findings, the net result which could be arrived at is that the learned Court below has committed serious and jurisdictional error in allowing the delay condonation application in Darkhast proceedings. Learned City Civil Court has exercised jurisdiction to condone the delay, which is not vested with it. As such error much less error of law has been committed. Thus, revision deserves consideration. For the reason stated hereinabove, this revision is allowed. The impugned order dated 29.02.2024 passed by learned City Civil Court in Civil Misc. Application No.611 of 2023 is quashed and set aside. Consequently, Civil Misc. Application No.611 of 2023 stands dismissed. Connected Civil Application No.1 of 2024 does not survive and it stands disposed of, accordingly.