As per Section 151 of the Code of Civil Procedure, a Court of law much less the Executing Court has got inherent power to restore the Execution Petition to file which has been dismissed for default earlier and viewed in that perspective

Citation

2011-4-TLNJ - 227(CIVIL)

2011(12) MWN(civil) 144

Matram Ambalam vs Dhanalakshmi

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Jeyaraman vs Joseph Pouvatchy on 23 October, 2018

Madras High Court

Nattan Ambalam vs Dhanalakshmi on 22 January, 2011

 
 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 22/01/2011

CORAM
THE HONOURABLE MR.JUSTICE M.VENUGOPAL

C.R.P.NPD.No.1603 of 2001
and
C.M.P.No.8770 of 2001

Nattan Ambalam     ... Petitioner/
             Respondent/Defendant

Vs.

Dhanalakshmi     ... Respondent/
          Petitioner/Plaintiff

Prayer

Petition filed under Section 115 of the Civil Procedure Code, against
the order dated 12.03.2001 passed in E.A.No.81 of 2000 in E.P.No.217 of 1996 in
O.S.No.43 of 1991 on the file of the learned District Munsif, Melur.

!For Petitioner   ... Mr.S.Subbiah
^For Respondents  ... Mr.S.A.Ajmal Khan
* * * * *

:ORDER

The Civil Revision Petitioner/Respondent/Defendant has filed the present Civil Revision Petition as against the order dated 12.03.2001 passed in E.A.No.81 of 2000 in E.P.No.217 of 1996 in O.S.No.43 of 1991 by the learned District Munsif, Melur.

2. The learned District Munsif, Melur, while passing the orders in E.A.No.81 of 2000 in E.P.No.217 of 1996 on 12.03.2001, has among other things observed that E.A.No.81 of 2000 will be allowed on condition that the respondent/petitioner paying a cost of Rs.500/- to the revision petitioner/defendant before 20.03.2001 failing which the petition will stand dismissed.

3. According to the learned Counsel for the revision petitioner/defendant, the order passed by the Executing Court in E.A.No.81 of 2000 in E.P.No.217 of 1996 on 12.03.2001, is contrary to law and an irregular one. According to the learned Counsel for the petitioner/ defendant, the Executing Court should have seen that any application for setting aside the ex-parte order as per Rule 105 of Order 21 of the Code of Civil Procedure as per Rule 106(3) must be filed within 30 days from the date of the order, but this aspect of the matter has not been appreciated by the Executing Court in a proper perspective which has resulted in an erroneous order being passed in E.A.No.81 of 2000.

4. It is the plea of the learned Counsel for the petitioner/defendant that the Executing Court ought to have taken note of the fact that E.P.No.217 of 1996 has been dismissed for default by an order dated 09.01.1998, but the application for restoration has been filed only on 13.03.2000 and therefore, the application for setting aside the order of dismissal itself is barred by limitation.

5. The learned Counsel for the petitioner/defendant contends that when an application is barred by limitation since Section 5 of the Limitation Act is not applicable to any of the proceedings or an application under any of the provisions of Order 21 of the Code of Civil Procedure, the application itself should not have been taken on file, whatever be the reasons.

6. The principal contention of the learned Counsel for the petitioner/defendant is that E.A.No.81 of 2000 cannot be taken on file as per Section 151 of the Code of Civil Procedure, when there are specific provisions available under the Code of Civil Procedure. Therefore, E.A.No.81 of 2000 should have been dismissed as not maintainable by the Executing Court.

7. It is the contention of the learned Counsel for the petitioner/defendant that even assuming that E.A.No.81 of 2000 can be filed after the expiry of the limitation period, still in the absence of any application under Section 5 of the Limitation Act, E.A.No.81 of 2000 per se is not maintainable because it is not accompanied by a delay condonation application.

8. The further contention advanced by the learned Counsel for the petitioner is that the Executing Court cannot put the petitioner/defendant in a disadvantageous position when the respondent/decree holder has not worked out her remedy within the time prescribed in law.

9. The learned Counsel for the petitioner relies on the decision of the Honourable Supreme Court in Damodaran Pillai and others v. South Indian Bank Ltd., reported in 2005(4) CTC 534, wherein it is observed that 'Application under Section 5 of Limitation Act is not maintainable in a proceeding arising under Order 21 of the Code of Civil Procedure as it has been expressly excluded.'

10. Further, the learned Counsel for the petitioner contends that Section 5 of the Limitation Act, 1963, is not applicable to the application filed for setting aside the ex-parte order under Rule 106 of Order 21 of the Code of Civil Procedure and to lend support to his contention, he relies on the decision of this Court in M.Ponnupandian v. Selvabakiyam and others reported in 2003(4) CTC 225, wherein it is held that 'Section 5 of the Limitation Act, is not applicable to the petition filed for setting aside the ex-parte orders under Order 21 Rule 106 of the Code of Civil Procedure, etc.'

11. Also, the learned Counsel for the petitioner brings it to the notice of this Court the decision in Rakesh Sugar Tail Factory Mohammadabad and others, v. U.P.Financial Corporation, Kanpur reported in AIR 1984 ALLAHABAD 23, wherein it is laid down as follows:

"District Judge exercising jurisdiction under Section 32 has inherent power to entertain an application for setting aside ex parte order, confirming an ad interim order passed under S.32(1) even though O.9, Rule 13 of C.P.C. may not be applicable. He can go into the question whether there was sufficient cause for non-appearance of the applicant."

12. Per contra, the learned Counsel for the respondent/petitioner/plaintiff submits that the dismissal of execution application for default of appearance of the decree holders, cannot be treated as per Rule 105 of Order 21 of the Code of Civil Procedure so as to attract Rule 106, but it should be under inherent powers and further the application for its restoration also will be by invoking the inherent powers of Court when no time limit is prescribed and in this regard, he places reliance on the decision in Khoobchand Jain v. Kashi Prasad reported in AIR 1986 MADHYA PRADESH 66, at pages 69 and 70, wherein it is held as follows:

"17. Rule 106 of O.21 of the Civil P.C., provides that if the Court is satisfied that there was sufficient cause for non-appearance, when the application was called for 'hearing', the Court shall set aside the order. No such order shall be made unless the application is made within 30 days from the date of order. Rule 105 contemplates dismissal of the application on a date of 'hearing', while Rule 106 provides for restoration of application on making out sufficient cause for non-appearance, when the application was called for 'hearing'.

18. In my opinion, the date on which the execution application was dismissed for default of appearance of the decree-holders, namely, 21-8-1979 was not a date fixed for 'hearing' within the meaning of Rule 105. It was a date awaiting report as to execution of the warrant which was supposed to be issued on submission of a list of moveable property by the decree-holders within three days of the earlier order dated 21-7-1979. Consequently, the dismissal of execution application on 21-8-1979 was not under Rule 105(2) of O.21 of the Civil P.C., and therefore, the provisions of R.106 are not attracted. The dismissal of the execution application in default of appearance on 21-8-1979 is referable to inherent powers of the Court."

13. He also cites the decision in Rani Krishnawati v. Sureshmohan Thakur and another reported in AIR 1974 PATNA 327, at 328, wherein it is observed as follows:

"An order dismissing an execution case for default is not appealable. If remedy of filing fresh execution is barred, the decree-holder will be left with no other remedy except of invoking the inherent jurisdiction of the Court. In such a case, a very good and sufficient cause will, however, have to be established for getting the execution case restored."

14. He further relies on the decision in Deo Narayan Goala, (Deceased by L.R.) and others v. Jagadish Pandit, reported in AIR 1985 GAUHATI 49 at page 50, wherein it is laid down thus:

"The application filed by the decree-holder u/s.151, C.P.C., for setting aside the order dismissing his execution petition, could not be said to be incompetent or barred by O.21, R.106, having regard to the facts and circumstances of the case. In the case in hand, the application for execution of the decree dt.4-3-1968 was dismissed by the Munsif, by his order dt.11-7-1980 on the ground that the decree-holder took no other steps for proceeding with the execution. As the limitation period of 12 years from the date of the decree had expired on 4-3-1980, long before the rejection of the execution petition, the remedy of filing a fresh execution application was not available to the decree- holder. In these circumstances, the decree-holder filed an application u/s.151 of the Code for recalling the order dt.11-7-1980. The application u/s.151 could not be said to be barred on the ground that there was a specific provision to deal with the matter under R.106 of O.21 of the Code. Rule 106 came into play only when an application was absent at the time of hearing and the application was therefore rejected. As the order dismissing the execution petition on the ground that the decree-holder took no other steps for proceeding with the execution, was not an order covered by R.105 of O.21, the application for setting aside such order could not be filed under R.106 of O.21. The inherent power of the Court was, therefore, held rightly invoked in the absence of any other express provision in the Code to deal with the situation which had arisen in the instant case."

15. This Court worth recalls the decision in Dambarudhar Mohanta v. Mangulu Charan Naik and others reported in AIR 2004 ORISSA 126, at paragraph 6, it is held as hereunder:

"6. On perusal of the impugned orders and the order of the learned Civil Judge, provision under Order 21, Rule 106, CPC and the aforesaid contention of the petitioner, this Court finds that the view expressed by the District Judge relating to non-applicability of the provision of Order 21, Rule 106 relating to restoration of an execution case dismissed for default is correct. In other words, the execution proceeding dismissed in such a manner cannot be restored on an application under Order 21, Rule 106, CPC. In that respect in the absence of any specific provision in the Code of Civil Procedure. Provision in Section 151, CPC is the only provision to consider the prayer for restoration. So far as the factual finding recorded by learned District Judge is concerned this Court is not inclined to interfere with the same when petitioner is unable to state of any illegality or perversity in such finding. Besides that while in seisin of the matter under Article 227 of the Constitution of India, it is neither required under the law nor found desirable by this Court to interfere with a discretionary but lawful order passed by learned District Judge."

16. Further, this Court aptly points out that the powers under Section 151 of the Code of Civil Procedure are not powers over the substantive rights which any litigant possesses, as per the decision in New India Assurance Co., Ltd., Visakhapatnam v. Moror Alexy and others reported in 2004(2) ALT 111 (D.B).

17. Also, the inherent powers cannot be resorted to when there are specific provisions in the Act to deal with the situation, as per the decision of the Honourable Supreme Court in State of W.B and others v. Karan Singh Binayak and others reported in (2002) 4 Supreme Court Cases 188.

18. It is to be noted that the inherent powers of a Courts of a Court of law has its root in necessity and its breath is co-extensive with necessity.

19. In Ajoy Kumar Rit v. Iswar Dharma Thakur and others reported in AIR 1995 CALCUTTA 370, wherein it is held that 'ex-parte disposal of an application which may result in substantial injustice to a party can be recalled as per Section 151 of the Code of Civil Procedure.'

20. In State of M.P. v. Awadh Kishore Gupta and others reported in (2004) 1 Supreme Court Cases 691, at page 694, it is observed thus: "No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in Section 482 CrPC which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal, possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in the course of administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest (when the law gives a person anything it gives him that without which it cannot exist)."

21. The respondent/petitioner/plaintiff in E.A.No.81 of 2000 before the Executing Court has among other things averred that because of her frequent illness, she has taken treatment with Madurai Doctor Veeramani every now and then and also taken treatment continuously and because of her non-appearance, E.P.No.217 of 1996 has been dismissed on 09.01.1998 and the dismissal order is not based on merits and as such, she has prayed for restoration of E.P.No.217 of 1996 to file for the purpose of execution of re-delivery ordered on 05.12.1997.

22. However, the revision petitioner/respondent/ defendant in his counter to E.A.No.81 of 2000 has inter alia stated that the respondent/petitioner/plaintiff and some others unlawfully attempted to take delivery of the suit property without following due procedures and that the Court has ordered delivery of the suit property on 05.12.1997 and the non- appearance of the respondent/ petitioner/plaintiff before the Executing Court on 09.01.1998 is willful and wanton and an application cannot be filed under Section 151 of the Code of Civil Procedure and therefore, the said application is not maintainable in law.

23. On a careful consideration of the respective contentions and taking note of the fact that E.P.No.217 of 1996 has been dismissed on 09.01.1998 for non-appearance of the respondent/petitioner/plaintiff and that on an overall assessment of the facts and circumstances of the present case in an integral manner, this Court comes to an inevitable conclusion that the Executing Court while allowing E.A.No.81 of 2000 has categorically observed that the respondent/petitioner/plaintiff has obtained a decree in respect of the suit property and if E.A.No.81 of 2000 to restore the E.P.No.217 of 1996 to file, is not allowed, then it will cause inconvenience and hardship to the respondent/petitioner/plaintiff in enjoying the fruits of the decree etc., and the said conclusion arrived at by the Executing Court while applying/exercising its judicial discretion in allowing E.A.No.81 of 2000 cannot be found fault with in any manner and as per Section 151 of the Code of Civil Procedure, a Court of law much less the Executing Court has got inherent power to restore the Execution Petition to file which has been dismissed for default earlier and viewed in that perspective, E.A.No.81 of 2000 filed by the respondent/petitioner/plaintiff under Section 151 of the Code of Civil Procedure is quite competent in the eye of law. Resultantly, the Civil Revision Petition fails.

24. In the result, this Civil Revision Petition is dismissed leaving the parties to their own costs. Further, the respondent/petitioner/plaintiff is directed to pay a costs of Rs.500/- (Rupees Five Hundred only) to the revision petitioner/respondent/defendant within a period of two weeks from the date of receipt of a copy of this order (if not already paid.). On such payment is being made, the Executing Court is directed to restore E.P.No.217 of 1996 on file and dispose of the same within a period of four months thereafter, on merits and in accordance with law after providing adequate opportunities to both sides and report compliance to this Court. Consequently, the connected Miscellaneous Petition is dismissed.

rsb To

1.The District Munsif, Melur.

2.The Sub Assistant Registrar (Judicial), Madurai Bench of Madras High Court, Madurai. (to watch and report).

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