Sunday, 8 May 2016

Whether application U/S 5 of limitation Act is tenable for condoning delay in filing application for restoration of execution application?

The learned first appellate court though rightly upheld the order of the
learned trial court but was not correct in holding that in the absence of an
application under section 5 of the Limitation Act, there was no scope to condone
the delay. This is because Section 5 of the Limitation Act is not maintainable in
the present case. This is a proceeding under Order XXI of the Code of Civil
Procedure and Section 5 of the Limitation Act has been expressly excluded from
Section 5 of the Limitation Act itself. Section 5 says that any appeal or any
application other than application under any of the provisions of Order XXI of the
Code of Civil Procedure may be admitted after prescribed period on satisfaction
that there was sufficient cause for not preferring the appeal or filing the
application in time. Section 5 specifically shows that it is not applicable to an
application under any of the provisions of Order XXI of the Code of Civil
Procedure. Order XXI is a code in itself. Rule 106(3) lays down a period of
limitation in the provision and it also provides for condoning delay and that too,
within a period of 30 days. Since it has been specifically provided in the code the
applicability of sections 4 to 24 of the Limitation Act would be excluded by
section 29 of the Limitation Act itself. Section 5 of the Limitation Act, therefore, 
would not apply in condoning delay in filing application under any of the
provisions of Order XXI of the Code of Civil Procedure. The learned first appellate
court committed error in this regard, though ultimately order was correct.
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Case No: CRP 114/2014
Md. Jasim Uddin Laskar,
S/o Late Aftab Uddin Laskar,
-Versus-
Sri Zia Uddin Ahmed Mazumder,

-BEFOREHON’BLE
MR. JUSTICE N. CHAUDHURY

Date of delivery of
Judgment and Order : 29.02.2016
Citation;AIR 2016 Gauhati 75

This is an application under Article 227 of the Constitution of India read
with section 151 of the Code of Civil Procedure challenging the order dated
06.12.2013 passed by learned District Judge, Cachar at Silchar dismissing the
Misc. Appeal No. 3/2011 of this court thereby affirming the judgment and order
dated 08.03.2011 passed by learned Civil Judge No. 1, Cachar at Silchar in Misc.
Case No. 46/2010 arising out of Title Execution No. 5/2008. By that order, the
learned first appellate court held that the application filed by the petitioner under
Order XXI Rule 106 was barred by limitation and the learned Executing Court did
not commit any mistake in rejecting the application on that ground.
2. The brief facts involved in the revision petition are required to be stated
at the threshold for the purpose of understanding the points involved. The
opposite party No. 2 in the present petition is stated to have entered into an
agreement for sale of a plot of land measuring 3 katha to the opposite party No.
2 on 11.11.2003 by executing a written agreement. The opposite party No. 1
thereafter instituted Title Suit No. 70/2005 for a decree of specific performance
of contract against the opposite party No. 2. The suit was decreed on 24.02.2006 
and the opposite party No. 1 put the decree into execution vide Title Execution
No. 5/2008. At this stage, the present petitioner, as plaintiff, instituted a fresh
title suit being T.S. No. 146/2008 asking for a decree of specific performance
against same opposite party No. 2 claiming that the opposite party No. 2 had
entered into an agreement for sale of the same plot of land to him by another
written agreement dated 09.10.2000 at a consideration of Rs. 1,50,000/-. The
opposite party No. 2 is alleged to have received Rs. 1,30,000/- as advance and
only Rs. 20,000/- was to be paid at the time of execution and registration of sale
deed. As the opposite party No. 2 did not execute sale deed in his favour, he
instituted the suit for specific performance of contract. By that time, Title
Execution No. 5/2008 was proceeding. The present petitioner, therefore, filed an
application under Order XXI Rule 26 of the CPC before the Executing court
praying for stay of execution by making mention about the subsequently
instituted T.S. No. 146/2008. The learned Executing court rejected the
application against which an application under Article 227 of the Constitution of
India was preferred before this court and this court disposed of the revision
petition giving liberty to the present petitioner to file an appropriate application
before Executing court. Under such circumstances, petitioner submitted an
application under Order XXI Rule 97 of the Code of Civil Procedure before the
Executing court in Title Execution No. 5/2008 and staked claim of right to the suit
land. This application was registered as Misc. Case No. 43/2009. This decree
holder submitted objection in this application but at this stage on 27.11.2009, the
petitioner remained absent without any step for which the Misc. Case stood
dismissed for default and stay order dated 23.09.2009 granted earlier was 
accordingly vacated. Thereafter, the present petitioner filed an application before
the same Executing court on 24.09.2010 under Order XXI Rule 106 read with
section 151 of the Code of Civil Procedure for restoration of the Misc. Case. The
learned Executing court by detailed order dated 08.03.2011 rejected the
application holding that the Misc. Case No. 43/2009 had been dismissed for
default on 27.11.2009 and the Misc. Case No. 46/2010 under Order XXI Rule 106
of the Code of Civil Procedure was filed on 24.09.2010 and thus clearly it was
barred by limitation. Accordingly, the Misc. Case No. 46/2010 was also dismissed
by the learned Executing court.
3. Aggrieved by the aforesaid order of the learned Executing court, the
present petitioner preferred Misc. Appeal No. 3/2011 before the learned
Additional District Judge, Cachar at Silchar. The first appellate court after hearing
the parties, upheld the finding of the learned trial court insofar as it relates to the
bar of limitation is concerned. The learned senior counsel on behalf of the
petitioner argued before the first appellate court that the period of 30 days has
to be counted from the date of knowledge under Order XXI Rule 106(3) of the
Code of Civil Procedure and the petitioner specifically pleaded that he had
recently come to know about the order. The learned first appellate cournt
considered this prayer and then held that question of counting period of
limitation from the date of knowledge would arise only if such an order is passed
ex-parte without there being due service of notice. Thereafter, the learned first
appellate court held that in the absence of an application under section 5 of the
Limitation Act, the learned Executing court did not commit any error in rejecting 
the application under Rule 106. This judgment and order passed on 06.12.2013
has been called in question in the present revision petition.
4. On 04.04.2014 when this matter came up for admission hearing before
this court, a question came up as to whether there is scope for condonation of
delay in restoring an application dismissed under Order XXI Rule 97 of the Code
of Civil Procedure. This court requested Mr. GC Phukan, a learned senior member
of the Bar who was present in the court, to assist the court to find an answer to
the question. He was accordingly appointed as Amicus Curiae and the learned
counsel readily agreed to assist this court. This court keeps on record the
valuable assistance rendered by the learned senior member at the request of the
court.
5. I have heard Dr. B Ahmed, learned counsel for the petitioner, Mr. GC
Phukan, learned Amicus Curiae and Mr. B Banerjee, learned senior counsel
assisted by Mr. A Dey, for the opposite party No. 1. None appears for the
opposite party No. 2. I have gone through the two orders passed by the learned
courts below.
6. Dr. B Ahmed, learned counsel for the petitioner would argue that the
Misc. Case No. 43/2009 was instituted by engaging a learned counsel who was
taking steps all along. But when the application came up for hearing on
27.11.2009, the learned counsel did not take any step and remained absent but
for which the same was dismissed for default. The petitioner was not informed
about the dismissal of the miscellaneous case. Subsequently, somebody from
court informed him that the original execution proceeding has started again and
then he made enquiry by engaging a different counsel only to know that his Misc. 
Case No. 43/2009 had been dismissed for default on 27.11.2009. Under such
circumstances, he filed an application under Rule 106 of Order XXI of the Code of
Civil Procedure for setting aside the ex-parte order dated 27.11.2009 and for
restoration of Misc. Case No. 43/2009. According to him, the date of limitation
should run from the date he came to know about the order dated 27.11.2009.
7. Mr. GC Phukan, learned Amicus Curiae as well as Mr. B Banerjee, learned
senior counsel would argue, on the other hand, that there is no question of
knowledge in the present case. The Misc. Case No. 43/2009 was instituted by the
present petitioner himself and it was dismissed for default. Date of knowledge as
mentioned in Order XXI Rule 106(3) of the Code of Civil Procedure relates to only
to those ex-parte orders which were passed without serving notice on the
aggrieved person. Here in this case, there is no question of notice because the
petitioner himself was the petitioner and so that part of Rule 106(3) of Order XXI
cannot arise. The learned Amicus Curiae as well as learned senior counsel has
placed reliance on a judgment of the Hon’ble Supreme Court in this regard in the
case Damodaran Pillai & ors. v. South Indian Bank Ltd. reported in (2005) 7 SCC
300. This judgment has been pressed into service only to show that there is no
question of condoning delay in proceeding under Order XXI of the Code of Civil
Procedure. Perhaps, this is in view of the fact that the learned first appellate
court stressed on the point that petitioner did not file an application under
section 5 of the Limitation Act. I have perused the judgment of the Hon’ble
Supreme Court in the case of Damodaran Pillai & ors. (supra).
8. In the aforesaid case, the appellant before the Supreme Court filed an
application under Order XXI Rule 97 of the Code of Civil Procedure before the 
Executing court and it was also dismissed for default on 01.11.1990. The
application for restoration was thereafter filed on 04.04.1998 on the ground that
the plaintiff came to learn about the impugned order only on 25.03.1998. Thus,
there is similarity of the facts of the present case with the aforesaid reported
judgment. The Hon’ble Supreme Court held in the aforesaid case that an
application dismissed for default in terms of sub-Rule 2 of Rule 105 can be
recalled for restoring an application under section 106 and in that event, starting
point of limitation for filing of the restoration application would be the date of the
order and not the knowledge thereabout. The applicant in that reported case was
represented in the proceeding all along by his Advocate and his knowledge of the
order was presumed. Paragraphs 11 to 16 of the aforesaid judgment are quoted
below for ready reference.
“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 afore-mentioned 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 dale of the order
and not the knowledge thereabout. As the applicant is represented in the
proceeding though his Advocate, his knowledge of the order is presumed. The
starting point of limitation being knowledge about the disposal of 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 mater, 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, 1962.
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
or 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 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.”
9. In the present case, the learned first appellate court has rightly held that
Rule 106 of Order XXI has two parts. The first part deals with the ex-parte orders
in general. The second part relates to only those cases where an ex-parte order
has been passed against someone without duly serving notice on him. In the
second part only, the question of filing application within 30 days from the date
of knowledge is provided. So far as the first part is concerned, application has to
be filed within the period of 30 days from the date of order. After passing of the
judgment by the Hon’ble Supreme Court in regard to second part of Rule 106(3)
of the Code of Civil Procedure, there is no scope to uphold the argument of Dr. B
Ahmed that limitation would start from the date of knowledge in the present
case. This is because the present petitioner was the applicant before the
Executing court and his application having been dismissed for default for some or 
other reason, there was no question of service of notice on him. The second part
of Rule 106(3) of the Code of Civil Procedure, therefore, would not apply to the
present case and limitation has to start from the date of passing of the order
only. The point is no longer res integra in view of the judgment of the Hon’ble
Supreme Court in the case of Damodaran Pillai & ors. (supra). This being the
position, the sole argument of Dr. B Ahmed in support of the petitioner in this
case cannot be countenanced.
10. The learned first appellate court though rightly upheld the order of the
learned trial court but was not correct in holding that in the absence of an
application under section 5 of the Limitation Act, there was no scope to condone
the delay. This is because Section 5 of the Limitation Act is not maintainable in
the present case. This is a proceeding under Order XXI of the Code of Civil
Procedure and Section 5 of the Limitation Act has been expressly excluded from
Section 5 of the Limitation Act itself. Section 5 says that any appeal or any
application other than application under any of the provisions of Order XXI of the
Code of Civil Procedure may be admitted after prescribed period on satisfaction
that there was sufficient cause for not preferring the appeal or filing the
application in time. Section 5 specifically shows that it is not applicable to an
application under any of the provisions of Order XXI of the Code of Civil
Procedure. Order XXI is a code in itself. Rule 106(3) lays down a period of
limitation in the provision and it also provides for condoning delay and that too,
within a period of 30 days. Since it has been specifically provided in the code the
applicability of sections 4 to 24 of the Limitation Act would be excluded by
section 29 of the Limitation Act itself. Section 5 of the Limitation Act, therefore, 
would not apply in condoning delay in filing application under any of the
provisions of Order XXI of the Code of Civil Procedure. The learned first appellate
court committed error in this regard, though ultimately order was correct.
11. Having noted the submissions of the learned counsel for the parties and
on perusal of the materials on record, this court does not find merit in the
present revision petition. It is accordingly dismissed.
12. Interim order, if any, stands automatically vacated.
13. No order as to costs.

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