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CASE NO.: Appeal (civil)  1079 of 2004

PETITIONER: Damodaran Pillai & Others                                        

RESPONDENT: South Indian Bank Ltd.                                           

DATE OF JUDGMENT: 08/09/2005

BENCH: Ashok Bhan & S.B. Sinha

JUDGMENT: J U D G M E N T

S.B. SINHA, J:

       Interpretation of sub rule (3 ) of Rule 106 of Order XXI of the Code  of Civil Procedure (Code) falls for consideration in this appeal which arises  out of the judgment and order  dated 22nd July, 2003 passed by  a learned  Single Judge of the High Court of Kerala in CRP No. 1033 of 2002 whereby  and whereunder the Revision Petition  filed by the appellants herein from an  order dated 6.10.2001 passed by the Principal sub-Judge Kollam in  Execution Petition  No. 234/88 in O.S. No. 178/84 was dismissed.   

The basic fact of the matter is not in dispute.   

The respondent herein obtained a decree against the appellant herein  for a sum of Rs. 78,155.80 in a suit being No. 178/84 filed before the  Principal sub-Judge, Kollam.  An Execution Petition was filed by the  respondent herein for execution of the said decree in the said court which  was marked as Execution Petition No. 234 of 1988.  It is not in dispute that  the said Execution Petition had been set down hearing.  It was dismissed  for  default on 1.11.1990.  It is also not in dispute that an application for  restoration of the said Execution Petition was filed by the respondent herein  on 4.4.1998 inter alia on the premise that it came to learn about the dismissal  of the said Execution Petition only on 25.3.1998.   

Before the learned Trial Court the appellant herein inter alia raised the  contention that the said restoration application was filed beyond the  prescribed period of limitation.  

The learned Subordinate Judge in terms of his order dated 6th October,  2001  rejected  the said contention.  The Revision Petition preferred against  the same was dismissed summarily.  The appellant is, thus, before us.  

       Mr. P. Krishnamoorthy, learned Senior Counsel  appearing on behalf  of the appellant raised a short question in support of this appeal contending  that in terms of sub-rule (3) of Rule 106 of Order XXI of the Code of Civil  Procedure a restoration application is required to be filed within 30 days  from the date of passing of the order and not thereafter  and for the said  purpose Section 5 of the Limitation Act, 1963 is not applicable.  It was  urged that the Executing Court could not have, thus, condoned the delay in  exercise of its inherent power or otherwise.   

       Mr. V.B. Joshi, learned counsel appearing on behalf of the  respondent, on the other hand, contended that keeping in view the peculiar  facts and circumstances of this case the Executing Court should be held to  have inherent power to condone the delay.  

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       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.  

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."

       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.

       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.  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.  

       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.

       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).

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       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.   

       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.

       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.

       In Ayappa Naicker Vs. Subbammal & Anr. [ 1984 (1) Madras Law  Journal Reports 214 ], Mohan, J. (as His Lordship then was) opined:

"Therefore having regard to the above language, it  was permissible to have such a provision wherein  the position is clearly changed at present.  Section  5 of the present Limitation Act, 1963, states that  any appeal or any application under any of the  provisions of Order 21, Civil Procedure Code,  1908, may be admitted after the prescribed period  if the appellant or the appellant satisfies the Court  that he had sufficient cause for not preferring the  appeal or making the application within such  period.  The Explanation is omitted as  unnecessary.  Therefore, with reference to  applications under Order 21, Civil Procedure  Code, there is the statutory bar in applying section  5 of the Limitation Act.  It may also be relevant to  note section 32 of the Limitation Act before it was  repealed by Central Act LVI of 1974.  It is stated  under that section that the Indian Limitation Act,  1908 is hereby repealed.  Therefore, after 1st  January, 1964, sub-rule (4) of rule 105 of Order  21, Civil Procedure Code, could no longer be  applied, because of the express language of section  5 of the Limitation Act.  That is why the Central  Code, in rule 106 of Order 21, Civil Procedure  Code, did not make any reference to the same  saying that section 5 of the Limitation Act would  be applicable.  In view of this, the order of the  Court below ought to be upheld."

       It was further held:   "The question of invoking inherent powers under  section 151, Civil Procedure Code, does not arise  in this case.  That is because of the specific  provision contained under rule 106 of Order 21,  Civil Procedure Code.  If, therefore, there is  repugnancy between the Central Code, under rule  106, and the Madras Amendment under sub-rule  (4) of rule 105 of Order 21, it is section 97 of the  Civil Procedure Code, in relation to repeal and  savings that would apply.  That says that any  amendment made, or any provision inserted in the  principal Act by a State Legislature or a High  Court before the commencement of this Act shall

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except in so far as such amendment or provision is  consistent with the provisions of the principal Act,  as amended by this Act, stand repealed."

We respectfully agree with the said opinion.  

Similar views have been taken in M. Abdul Salam & Ors. Vs.  Lourdusami Chettiar [ AIR 1962 Madras 386],  Sri Tankala Appalaswamy  Gari Samba Murthy Vs. Gopasundara Sabatho [AIR 1963 AP 127] and  Ganapathy Vs. Murugesa Chetty [1989 (2) L.W. 38].   

Mr. Joshi, however, placed strong reliance upon Khoobchand Jain &  Anr. Vs. Kashi Prasad & Ors. [ AIR 1986 MP 66].  The said decision, in our  opinion, has no application to the facts and circumstances of the present  case.  Therein the Execution Application   was dismissed on a day which  was not fixed for hearing.  The said order of dismissal, therefore, was not  passed in terms of sub-rule (2) of Rule 105 of Order XXI of Code of Civil  Procedure.  In that situation it was opined:  

"In the present case, the decree-holders had already  applied for execution and paid process-fee for  issuance of  a warrant of attachment.  It was,  therefore, for the Court to issue a warrant of  attachment of such property as was in possession  of the judgment-debtors.  Submission of the  inventory of moveable property in possession of  the judgment-debtors is not necessary under the  relevant rules.  In case, the warrant is returned  unexecuted, the decree-holders could, in their  discretion, make an application for examination of  the judgment-debtors under R.41 or could resort to  any other mode to recover the decretal amount."

       It was further observed:

"Since the dismissal of the execution application  on 21.8.1979 was under inherent powers, the  application for its restoration will be by invoking  the inherent powers of the Court and in that event,  no time limit is prescribed for invoking the  inherent powers of the Court."

       The principles underlying the provisions prescribing limitation are  based on public policy aiming at justice, the principles of repose and peace  and intended to induce claimants to be prompt in claiming relief.

       Hardship or injustice may be a relevant consideration in applying the  principles of interpretation of statute,  but cannot be a ground for extending  the period of  limitation.

       In R. Rudraiah and Another Vs. State of Karnataka and Others  [(1998) 3 SCC 23] interpretation of Section 48-A of the Karnataka Land  Reforms Act, 1961 fell for consideration before this Court which reads, thus:  "48-A. Enquiry by the Tribunal, etc.\027(1) Every person entitled to be  registered as an occupant under Section 45 may make an application to the  Tribunal in this behalf. Every such application shall, save as provided in this  Act, be made before the expiry of a period of six months from the date of the  commencement of Section 1 of the Karnataka Land Reforms (Amendment)  Act, 1978."      Prior to the amendment of the said Act by Act 1 of 1979, a  specific provision existed for condonation of delay but the same was deleted.  

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A similar contention, as in the present case, was raised therein which was  repelled by this Court stating:

"17. It is true there is a principle of interpretation  of statutes that the plain or grammatical  construction which leads to injustice or absurdity  is to be avoided (see Venkatarama Iyer, J. in Tirath  Singh v. Bachittar Singh (AIR at 855). But that  principle can be applied only if "the language  admits of an interpretation which would avoid it".  Shamrao V. Parulekar v. District Magistrate (AIR  at 327). In our view Section 48-A, as amended, has  fixed a specific date for the making of an  application by a simple rule of arithmetic, and  there is therefore no scope for implying any  "ambiguity" at all. Further "the fixation of periods of limitation must  always be to some extent arbitrary, and may  frequently result in hardship.  But in  construing such provisions, equitable  considerations are out of place, and the strict  grammatical meaning of the words is the only  safe guide"."

       In Lala Ram Vs. Hari Ram [(1969) 3 SCC 173], this Court held that  the period of limitation can be prescribed under Section 417 of the Criminal  Procedure Code,  wherefor it was not necessary for the legislature to amend  the Limitation Act and insert an article dealing with such applications.            For the reasons aforementioned, the impugned judgment cannot be  sustained which is set aside accordingly.  The Appeal is allowed. No costs.