BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 16/12/2008 CORAM THE HONOURABLE MR.JUSTICE S.PALANIVELU C.R.P. (NPD) (MD) No.1103 of 2006 and M.P. (MD) No. 1 of 2006 V. Mani ... Petitioner Vs. T. Ganesan ... Respondent Civil Revision Petition filed under Article 227 of the Constitution of India against the fair and decretal order dated 03.08.2006 made in E.A. No.52 of 2006 in E.A. No.14 of 2006 in E.P. No.8 of 2005 on the file of the District Munsif-Cum-Judicial Magistrate Court, Vedasandur. !For Petitioner ... Mr.M.Saravanan ^For Respondents ... Ms.J.Padmavathi Devi * * * :ORDER
The respondent is plaintiff in O.S. No. 138 of 1982 on the file of the
District Munsif Court, Dindigul. He filed the suit for specific performance of
contract against the petitioner’s father by name Velan and obtained decree. The
respondent filed E.P. No.8 of 2005 on the file of the District Munsif-Cum-
Judicial Magistrate Court, Vedasandur for delivery of the property in pursuance
of the decree passed in the suit. Pending the enquiry in the execution
proceedings, this petitioner, son of the defendant Velan, filed an application
in E.A. No.14 of 2006 under Order 21, Rules 97, 99 and 101 C.P.C. praying the
Court to declare that the decree passed in O.S. No.138 of 1982 is null and void,
the execution proceedings taken up by the plaintiff in E.P. No.6 of 2001 for
execution of sale deed against his father, is void ab initio, to declare that
the properties belong to him and also for a permanent injunction restraining the
plaintiff from interfering with his enjoyment of the properties mentioned in
O.S. No.138 of 1982.
2. When the hearing in E.A. No.14 of 2006 was posted on 16.03.2006, the
plaintiff who had to appear, however, he did not appear and hence, the Court set
him ex parte and the second respondent in the E.P., the defendant Velan,
expressed that the petition in E.A. No.14 of 2006 may be allowed and hence, the
said E.A. was allowed on 16.03.2006. Thereafter, the respondent/plaintiff filed
an application in E.A. No.52 of 2006 to set aside the ex parte decree passed on
him on 16.03.2006. The said petition was filed on 12.06.2006. In spite of
resistance by the petitioner herein, the above-said petition was allowed.
Challenging the order passed by the executing Court setting aside the ex parte
order against this respondent, the petitioner is before this Court.
3. In the affidavit, the respondent herein has affirmed that on
16.03.2006, E.A. No.14 of 2006 was posted for hearing, for which he had to
appear but he was unable to attend the Court since he was affected by Typhoidal
Fever, that on the later date, he came to the Court and enquired the Court
staff, informed him that he was set ex parte on 16.03.2006 and that his absence
was neither wilful nor wanton and it was by act of God. Hence, it is prayed
that the ex parte order may be set aside.
4. In the counter filed by this petitioner before the executing Court,
it is stated that the allegations found in the affidavit are incorrect and the
petition is not maintainable in law and on fact and that it is hopelessly barred
by Limitation and entertaining the petition itself was against law. It is
further stated that Section 5 of Limitation Act will not apply for application
under Order 21, Rule 106 of C.P.C. Hence, the petition has to be dismissed.
5. The learned District Munsif-Cum-Judicial Magistrate, allowed the
application setting aside the ex parte order passed against this respondent by
observing that this respondent’s rights would prejudiced in view of the decree,
he obtained in O.S. No.138 of 1982.
6. The learned counsel for the petitioner Mr.R.Subramanian, would
submit that Section 5 of the Limitation Act is not at all applicable to the
execution proceedings and that the petitioner having failed to adduce adequate
reasons in the affidavit for condoning the delay and not mentioned about the
date in which the ex parte orders was passed, the petition is liable to be
dismissed.
7. Conversely, the learned counsel for the respondent Ms. J.Padmavathi
Devi, would contend that there is no error or infirmity in the order passed by
the Court below and that the plaintiff, namely, this respondent, should be
allowed to enjoy the fruits of the decree passed in the suit.
8. It is well settled that the petition under Section 5 of the
Limitation Act is not at all maintainable in the execution proceedings. Only
one exemption is included in Order 21, Rule 106 (3), that is if an application
under sub-rule 1 to Order 21, is 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 then he can file an application. The provision is categorical and
definite in explaining that any application for setting aside the ex parte order
in any stage of the execution proceedings shall be filed within thirty days from
the date of the ex parte order and if the applicant was not served with the
notice in the execution proceedings and thereby he was prevented from appearing
before the Court for the hearing, then he is permitted to file such application,
however, within thirty days from the date of his knowledge.
9. In order to satisfy the above said statutory requirement, the
applicant has to strictly establish that the notice was not served upon him in
the execution proceedings and that he had knowledge only on a date
within thirty days before the date of filing of the application to set aside the
ex parte order. If such explanation or allegation is not available in the
affidavit, then the Court can reject the request of the applicant.
10. Adverting to the facts of the present case, in the affidavit, the
petitioner has mentioned only that he was unable to attend the Court on
16.03.2006. He has neither alleged that he did not receive the summons in the
E.A. No.14 of 2006 nor he had knowledge about the hearing date only on a
particular date and from that date within thirty days he filed this application.
In the absence of the explanations or material particulars, in order to satisfy
the statutory requirement, it has to be held that the petition is not
sustainable.
11. The learned counsel for the petitioner, in support of his
contention, placed much reliance upon the decision of the Hon’ble Supreme Court
of India reported in (2005) 7 SCC 300, Damodaran Pillai and others Vs. South
Indian Bank Ltd., wherein Their Lordships have held that the applicant having
been aware of the proceedings, he being the petitioner in the application for
restoration of execution petition, cannot be permitted to say that he had no
knowledge about the passing of dismissal order and that he had knowledge only on
a date and within thirty days from the date he filed an application for
restoration. The operative portion of the decision goes thus:
“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 sub-rule (2) of Rule 105, the
starting point 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 under sub-rule (2) of Rule 105, 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. He has also garnered support from the Division Bench decision of
this Court in 1989 1 LW 178, N.M.Natarajan Vs. Deivayanai Ammal and others, in
which the learned Judges have observed as follows:
“S.5 of the Limitation Act, 1963, is not applicable to a petition filed
for setting aside the orders passed ex parte under R.106 of O.21, C.P.C. and the
provision contained in sub-R.(4) of R.105 (Madras Amendment) is no longer in
force.”
13. The above-said observation rendered in the case afore-mentioned is
squarely applicable to the matter in issue.
14. Following the above said decision, in a subsequent decision in 2003
(4) CTC 225, M.Ponnupandian Vs. Selvabakiyam and others, this Court has taken an
identical view that there is no circumstance to take a different view in this
matter.
15. The learned counsel for the petitioner cited 2001-2-L.W. 113, Deep
Chand and Others Vs. Mohan Lal, pronounced by the Supreme Court, in which Their
Lordships have dealt with the powers of the executing Court in the matter of
executing a decree passed in a suit for specific performance. She also placed
reliance upon a decision of this Court reported in 1997-1-L.W.353, Bank of
Madurai Ltd., Madurai by its Branch Manager Vs. M.Sundara Mahalingam, wherein
the learned Judge has discussed about Article 136, Schedule-I of Limitation Act
and the maintainability of the E.P. before expiry of 12 years. The above-said
two decisions cited by the learned counsel for the respondent are not relevant
to the subject matter before this Court presently.
16. In view of the settled position of law, there is no option except to
hold that the order passed by the executing Court, challenged herein is perverse
and legally infirm. It is liable to be set aside and it is accordingly set
aside.
17. In fine, the Civil Revision Petition deserves to be allowed. The
respondent is at liberty to move the revision in the suit properties by any mode
known to law.
srm/arr
To
The District Munsif-Cum-Judicial
Magistrate Court,
Vedasandur.