(i) obtained by fraud practised upon the court,
(ii) when the court is misled by a party, or
(iii) when the court itself commits a mistake which prejudices a party.
13. In the present case, Narendra Kumar Sharma filed an application (registered as Misc. Case No. 16/74/2006) under Order 21 Rule 97 C.P.C., which was dismissed by Executing Court by order dated 04.09.2009. Executing Court should have allowed execution case and directed that decree holders be put into possession of the property, in view of Order 21 Rule 98 (2) C.P.C. on same day. Later on, ejectment of the petitioners was stayed in Writ-C No. 74825 of 2010, by order dated 22.12.2010, which was operative till 03.12.2014. Due to interim order of this Court, Executing Court was unable to pass any order in execution case except adjourning it. Order dated 15.10.2011 was passed during continuance of interim order of this Court. Executing Court committed two mistake, firstly on 04.09.2009, while dismissing application under Order 21 Rule 97 C.P.C., he would have allowed the execution case under Order 21 Rule 98 (2) C.P.C. on the same day and secondly due to interim order of this Court dated 22.12.2010, Executing Court was unable to pass any order, except adjourning execution case; although order dated 22.12.2010 was operative till 03.12.2014 but execution case was dismissed in default on 15.10.2011. This mistake of court can be rectified, exercising inherent powers under Section 151 C.P.C. Supreme Court in Om Prakash Marwaha v. Jagdish Lal Marwaha, (2009) 1 SCC 510, relying upon in Jang Singh v. Brij Lal, AIR 1966 SC 1631, held that a litigant should not suffer on account of the lapse made by an officer of the Court. Applying the well-known maxim actus curiae neminem gravabit, that an act of court should do no harm to a litigant, this Court held that the mistake should be rectified by the Court and the parties relegated to the position on the date when the mistake occurred. Madhya Pradesh High Court in Khoobchand Jain Vs. Kashi Prasad, AIR 1986 MP 66 and this Court in Arjun Prasad Smt. Ameer Jahan Begum, 2007 (8) ADJ 726 and Matter Under Article 227 No. 7036 of 2015 State of U.P. Vs. Saifi Abdul Hasan (decided on 11.12.2015) also held that if due to mistake committed by Court case was dismissed in default then order can be recalled.
HIGH COURT OF JUDICATURE AT ALLAHABAD
Case :- MATTERS UNDER ARTICLE 227 No. - 7035 of 2015
Narendra Kumar SharmaV Nand Kishore Sharma
Hon'ble Ram Surat Ram (Maurya),J.
DATED: 20.5.2016
1. Heard Sri Hem Pratap Singh, for the petitioners and Sri Om Prakash, holding brief of Sri Satish Mandhyan, for the respondents.
2. This petition has been filed for setting aside the orders of Additional Civil Judge (Senior Division) dated 31.08.2015, setting aside the order of dismissal in default, condoning the delay and restoring Execution Case No. 1 of 2004 to its original number and order of Additional District Judge dated 02.11.2015 dismissing the revision of the petitioner, against the aforesaid order.
3. Narendra Kumar Sharma (now represented by the petitioners) filed a suit (registered as O.S. No. 1495 of 1994) for permanent injunction restraining his father Nand Kishore Sharma (now represented by the respondents), from ejecting him from the disputed house, claiming that it was joint family property. Nand Kishore Sharma filed a suit (registered as O.S. No. 293 of 1995) for ejectment of Narendra Kumar Sharma, claiming that disputed house was his self acquired property. Both the suits were consolidated and heard together. Trial Court, by judgment dated 28.02.2001, decreed O.S. No. 293 of 1995 and dismissed O.S. No. 1495 of 1994. Decrees of Trial Court were challenged in Civil Appeal Nos. 168 and 176 of 2001, which were dismissed by a common judgment dated 29.10.2003. The petitioners filed Second Appeal Nos. 1325 and 1334 of 2003, from the aforesaid decrees, which were dismissed on 15.05.2006.
4. Nand Kishore Sharma died on 04.01.2002 and the respondents were substituted as his heirs, on the basis of his will. The respondents filed an application (registered as Execution Case No. 1 of 2004) for execution of decree of ejectment dated 28.02.2001. Narendra Kumar Sharma filed an application (registered as Misc. Case No. 16/74/2006) under Order 21 Rule 97 C.P.C., which was dismissed by Executing Court by order dated 04.09.2009. Narendra Kumar Sharma died on 19.10.2009. The petitioners filed an objection (registered as Misc. Case No. 2/7/2010) under Section 47 C.P.C., which was dismissed by Executing Court by order dated 07.10.2010. The petitioners filed an appeal (registered as Misc. Civil Appeal No. 80 of 2010) from the order dated 07.10.2010, which was dismissed by order dated 23.11.2010. The petitioners filed a writ petition (registered as Writ-C No. 74825 of 2010) against the orders dated 07.10.2010 and 23.11.2010. Initially this Court passed an interim order dated 22.12.2010, in this writ petition. Later on, writ petition was dismissed in default, by order dated 03.12.2014. The petitioners have filed an application (registered as Civil Misc. Restoration Application No. 60744 of 2014), for recalling the order dated 03.12.2014, which is pending.
5. Execution Case No. 1 of 2004 was dismissed in default on 15.10.2011. The respondents filed an application dated 17.04.2014 (registered as Misc. Case No. 19/74/13 of 2014) for recall of the order dated 15.10.2011, along with delay condonation application. The petitioners contested the recall application and filed their objection. Additional Civil Judge (SD) by his order dated 31.08.2015, held that High Court in Writ-C No. 74825 of 2010, by order dated 22.12.2010, stayed eviction of the petitioners, from the disputed house. This order was operative till 03.12.2014. The order of dismissal of Execution Case No. 1 of 2004 on 15.10.2011 was illegal. On these findings, he condoned the delay, allowed recall application, set aside order dated 15.10.2011 and restored Execution Case No. 1 of 2004. The petitioners challenged aforesaid order in Civil Revision No. 217 of 2015, which was dismissed by order dated 02.11.2015, summarily. Hence this petition has been filed.
6. The counsel for the petitioner submitted that the recall application was filed under Order 21 Rule 106 C.P.C. Order 21 Rule 106 (3) C.P.C. prescribes 30 days limitation, from the date of the order for filing recall application. Section 5 of Limitation Act, 1963 has not been applied, nor the Court is given discretion to enlarge limitation. Execution Case No. 1 of 2004 was dismissed in default on 15.10.2011. The respondents filed recall application on 17.04.2014. The application was not filed within 30 days. In the absence of any power to condone delay, the courts below have illegally condoned the delay. The order of condonation of delay and allowing recall application is without jurisdiction. He relied upon judgment of Supreme Court in Damodaran Pillai Vs. South Indian Bank Ltd., AIR 2005 SC 3460, in which it has been held that under Order 21 Rule 106 (3) C.P.C., 30 days limitation has been prescribed from the date of the order, for filing recall application. Section 5 of Limitation Act, 1963 has no application as such delay in filing recall application cannot be condoned. He submitted that orders of Courts below are illegal and Liable to be set aside.
7. I have considered the arguments of counsel for the parties and examined the record. First question arise as to whether Order 21 Rule 106 C.P.C. is applicable in the present case. By Act No. 104 of 1976, following provisions were inserted under Order 21 C.P.C.:-
Section 72. Amendment of Order XXI.- In the First Schedule, in Order XXI.-
(xxxiii) in rule 97, for sub-rule (2), the following sub-rule (2), the following sub-rule (1) shall be substituted, namely:-
"(2) Where any application is made under sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.";
(xxxiv) for Rules 98 to 103, the following rules shall be substituted, namely:-
'98. Orders after adjudication.-(1) Upon the determination of the questions referred to in Rule 101, the Court shall, in accordance with such determination and subject to the provisions of sub-rule (2),-
(a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or
(b) pass such other order as, in the circumstances of the case, it may deem fit.
(2) Where, upon such determination, the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf, or by any transferee, where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days.
99.Dispossession by decree-holder or purchaser. -(1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession.
(2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.
100. Order to be passed upon application complaining of dispossession- Upon the determination of the question referred to in Rule 101, the Court shall, in accordance with such determination.-
(a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or
(b) pass such other order as, in the circumstances of the case, it may deem fit.
101. Question to be determined.-All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.
102.Rules not applicable to transferee pendente lite.-Nothing in Rules 98 and 100 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person.
Explanation.-In this rule, "transfer" includes a transfer by operation of law.
103. Orders to be treated as decrees.-- Where any application has been adjudicated upon under rule 98 or Rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree.";
(xxxv)after Rule 103, the following rules shall be inserted, namely.-
"104. Order under Rule 101 or Rule 103 to be subject to the result of pending suit.- Every order made under Rule 101 or rule 103 shall be subject to the result of any suit that may be pending on the date of commencement of the proceeding in which such order is made, if in such suit the party against whom the order under rule 101 or Rule 103 is made has sought to establish a right which he claims to the present possession of the property.
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.
106. Setting aside orders passed ex parte etc. -(1) 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.
(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 the applicant had knowledge of the order."
8. These newly added Rules-105 and 106 provide procedures for deciding application under Order 21 Rule 97 C.P.C. (the application of a third person who objects execution of decree) or application under Order 21 Rule 99 C.P.C. (the application of a third person, who has been dispossessed in execution of decree). Order 21 Rule 106 C.P.C. provides remedy in case the applications under Order 21 Rule 97 and 99 C.P.C. were dismissed in default and the Court has ordered for execution of decree under Order 21 Rule 23 C.P.C. Order 21 Rule 106 C.P.C. does not provides remedy for recalling the order dismissing execution application of decree holder in default. Thus argument of counsel for the petitioner that courts below had no power to condone delay in filing recall application is not liable to be accepted.
9. By virtue of Section 141 C.P.C. the application can be filed under Order 9 Rule 4 or 9 C.P.C. or under Section 151 C.P.C.A Division Bench of this Court in Mst. Ram Dulari vs. B.Udai Bhan Pratap Singh, AIR 1954 All. 98 (DB) held that we find that the late Chief Court of Avadh in -'Bajrang Bahadur v. Suraj Narain', AIR 1945 Oudh 210 had laid down that although O. 9 Civil P.C. does not govern execution proceedings, the Court has jurisdiction to restore an execution application dismissed for default under the inherent powers even though a fresh application has become time-barred and we hold the same view.
10. Full Bench of Calcutta High Court in Bimla Devi vs. Aghore Chandra Mallick, AIR 1975 Cal 80 (FB) held that for all the reasons aforesaid, we are of the view that when an application under Order 21, Rule 90 is dismissed on the ground of default, it is open to the applicant to move the Court which passed the order for dismissal under Section 151 of the Code of Civil Procedure to have the order for dismissal set aside.
11. Jurisdiction of the Court to recall exparte order exercising power under Section 151 C.P.C. has been upheld by Supreme Court in Indian Bank v. Satyam Fibres (India) (P) Ltd., (1996) 5 SCC 550, in which it has been held that where the court is misled by a party or the court itself commits a mistake which prejudices a party, the court has the inherent power to recall its order. Following judgments of High Courts have been approved in this judgment namely Devendra Nath Sarkar v. Ram Rachpal Singh, AIR 1926 Oudh 315; Saiyed Mohd. Raza v. Ram Saroop, 1929 Oudh 385 (FB); Bankey Behari Lal v. Abdul Rahman, AIR 1932 Oudh 63; Gajanand Sha v. Dayanand Thakur, AIR 1943 Pat 127; Krishnakumar v. Jawand Singh, AIR 1947 Nag 236; Benoy Krishna Mukerjee v. Mohanlal Goenka, AIR 1950 Cal 287 and Lekshmi Amma Chacki Amma v. Mammen Mammen, AIR 1955 Ker LT 459.
12. Supreme Court in Budhia Swain v. Gopinath Deb, (1999) 4 SCC 396, held that what is a power to recall? Inherent power to recall its own order vesting in tribunals or courts and set aside an orders:-
(i) obtained by fraud practised upon the court,
(ii) when the court is misled by a party, or
(iii) when the court itself commits a mistake which prejudices a party.
13. In the present case, Narendra Kumar Sharma filed an application (registered as Misc. Case No. 16/74/2006) under Order 21 Rule 97 C.P.C., which was dismissed by Executing Court by order dated 04.09.2009. Executing Court should have allowed execution case and directed that decree holders be put into possession of the property, in view of Order 21 Rule 98 (2) C.P.C. on same day. Later on, ejectment of the petitioners was stayed in Writ-C No. 74825 of 2010, by order dated 22.12.2010, which was operative till 03.12.2014. Due to interim order of this Court, Executing Court was unable to pass any order in execution case except adjourning it. Order dated 15.10.2011 was passed during continuance of interim order of this Court. Executing Court committed two mistake, firstly on 04.09.2009, while dismissing application under Order 21 Rule 97 C.P.C., he would have allowed the execution case under Order 21 Rule 98 (2) C.P.C. on the same day and secondly due to interim order of this Court dated 22.12.2010, Executing Court was unable to pass any order, except adjourning execution case; although order dated 22.12.2010 was operative till 03.12.2014 but execution case was dismissed in default on 15.10.2011. This mistake of court can be rectified, exercising inherent powers under Section 151 C.P.C. Supreme Court in Om Prakash Marwaha v. Jagdish Lal Marwaha, (2009) 1 SCC 510, relying upon in Jang Singh v. Brij Lal, AIR 1966 SC 1631, held that a litigant should not suffer on account of the lapse made by an officer of the Court. Applying the well-known maxim actus curiae neminem gravabit, that an act of court should do no harm to a litigant, this Court held that the mistake should be rectified by the Court and the parties relegated to the position on the date when the mistake occurred. Madhya Pradesh High Court in Khoobchand Jain Vs. Kashi Prasad, AIR 1986 MP 66 and this Court in Arjun Prasad Smt. Ameer Jahan Begum, 2007 (8) ADJ 726 and Matter Under Article 227 No. 7036 of 2015 State of U.P. Vs. Saifi Abdul Hasan (decided on 11.12.2015) also held that if due to mistake committed by Court case was dismissed in default then order can be recalled.
14. In view of the aforesaid discussions, the petition has no merit and is dismissed.
Order date 20.5.2016
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