Bandaru Demudu vs Yedla Atchayyamma and Others

Dubagunta Subrahmanyam, J.—This revision is filed under Article 227 of the Constitution of India against the order dated 21.2.1997 on the file of the Subordinate Judge, Chodavaram in E.A. No. 231 of 1995 in E.P. No. 20 of 1981 in O.S. No. 129 of 1954.

The revision petitioner is the Court auction purchaser. He purchased items 1,3 and 7 of decree schedule property in Court auction. He represents that he deposited the sale amount and also deposited the necessary Non Judicial stamps in the execution Court. The sale is not yet confirmed by the Court on 27.9.1991 the decree holder was not present and his advocate reported no instructions in execution Court. Therefore, the executing Court dismissed the E.P. No. 20 of 1981 pending on its file on the same day. Thereafter, the revision petitioner filed a petition under Order 21 Rule 106 of the CPC (hereinafter referred to as ''C.P.C.'') to restore the E.P. dismissed for default. There was a delay of about 1274 days in filing the restoration petition. To condone the delay of 1274 days the revision petitioner filed E.A. No. 231 of 1995 u/s 5 of the Limitation Act.

The revision petitioner pleaded that when the E.P. was posted for confirmation of sale, the judgment debtors filed a revision petition in the High Court and obtained interim stay of E.P. proceedings and thereafter, the C.R.P. was dismissed by the High Court. He claims that he was not aware of the dismissal of the C.R.P. filed in the High Court and as he had no information about the adjournments in execution petition, he could not appear in the Court within the time and conduct the proceedings and therefore there is a delay in filing the restoration petition. Fifth judgment debtor alone contested the said petition. He pleaded that Section 5 of the Limitation Act has no application to the proceedings under Order 21 C.P.C. He also pleaded that the delay is not properly explained by the auction purchaser. The executing Court found that Section 5 of the Limitation Act applies to the proceedings under Order 21 Rule 106 C.P.C. and therefore held that the petition is maintainable. However, the Court below felt that the delay was not properly explained. Accordingly it dismissed the petition filed by the petitioner herein.

It is the contention of the learned advocate for the petitioner that as the E.P. is posted for confirmation of sale, the presence of the parties is not necessary and dismissal of the E.P. for default is without jurisdiction. He relied upon a decision of Madhya Pradesh High Court in KHOOBCHAND JAIN v. KASHI PRASAD1.

The facts of the case are that E.P. was filed for attachment and sale of movable properties for realisation of the decretal amount. On a day on which E.P. was posted awaiting the report of the result of attachment, due to the absence of the decree holder, the executing Court dismissed the E.P. for default. Then the High Court held that the date on which the execution application was dismissed for default of appearance of the decree holders was not a date fixed for "hearing" within the meaning of Rule 105 and it was a date awaiting report as to the execution of the warrant and consequently the dismissal of execution application was not under Rule 105(2) of Order 21 and therefore the provisions of Rule 106 are not attracted and the dismissal of execution application in default of appearance is referable to inherent powers of the Court. It was held that as the execution petition was dismissed exercising the inherent powers of the Court, no time limit is prescribed for invoking the inherent powers of the Court. In my considered opinion the above decision does not help the revision petitioner. The Madhya Pradesh High Court observed that as E.P. was dismissed exercising inherent powers of the Court, no time limit is prescribed in invoking the inherent powers of the Court. I am unable to concur with that observation. Article 137 of the Limitation Act 1963 deals with any other application for which no period of limitation is provided elsewhere in the division. It prescribes the period of limitation as three years. The limitation period begins to run from the date when the right to apply accrues. Therefore, even if Order 21 Rule 106 C.P.C. is presumed as not applicable to the facts on hand, it is to be held that the application to restore the E.P. dismissed for default even invoking inherent jurisdiction of the Court, has to be filed within three years. The present restoration application is not filed within three years as stipulated under Article 137 of the Limitation Act 1963.

Along with the material papers, the revision petitioner filed certified copy of E.P. No. 20 of 1981. The certified copy contains docket order dated 27.9.1991 only that docket order shows that the decree holder is not present and advocate for the decree holder represented no instructions for decree holder and therefore the E.P. is dismissed for default. For the reasons best known to the petitioner, he did not produce the copy of the docket order relating to the hearing dates prior to 27.9.1991. That docket proceedings alone will indicate for what purpose the E.P. was posted to 27.9.1991. By producing this certified copy of the docket order dated 27.9.1991 alone, the revision petitioner failed to show that the E.P. was not posted for hearing within the meaning of Order 21 Rule 105 C.P.C. on 27.9.1991. Further, as clear from the impugned order, the revision petitioner himself averred in his affidavit that the executing Court adjourned the E.P. 20 of 1981 from time to time and finally to 27.9.1991 for hearing the learned advocate for the decree holder and on that day dismissed the execution petition for default. This averment made by the revision petitioner in his affidavit belies his present contention that the E.P. was not posted for hearing on 27.9.1991. Therefore, the contention of the learned counsel for the petitioner that the E.P. was dismissed for default not exercising the powers conferred under Order 21 Rule 105 C.P.C., but exercising the inherent powers of the Court cannot be accepted. The reason shown for the delay in filing the restoration petition is that auction purchaser was not aware of the adjournments in the E.P. proceedings and he was also not aware of dismissal of connected C.R.P. by the High Court. Along with the material papers, the revision petitioner filed a copy of the order dated 10.4.1997 in C.M.P. No. 5331 of 1987 in C.R.P. 820 of 1987 on the file of the High Court. The said order was passed before the sale in question. He also produced the final order in C.R.P. No. 820 of 1987. The C.R.P. was dismissed on 27.8.1990. These two events took place long prior to E.P. being dismissed for default by the executing Court. Further, from the order of the executing Court, it is clear that the auction purchaser engaged an advocate in the trial Court. Therefore, the plea of the revision petitioner that he is not aware of the adjournments from time to time cannot be accepted. Therefore, the revision petitioner failed to prove the reason mentioned by him for the delay in filing the restoration petition.

It is to be stated that the present revision petitioner purchased only three items of E.P. schedule property. So it is clear that some other properties are also brought to sale by the decree holder. Therefore, It cannot be said that E.P. is posted on the date of dismissal merely for the purpose of confirmation of the sale. The Court may enquire to know about the further action to be taken regarding the other properties covered by the E.P. schedule. The Court may like to know whether the attachment of those properties has to be continued or be raised. Therefore, the presence of the decree holder becomes necessary on the date on which the E.P. was dismissed.

The learned counsel for the petitioner relied upon a decision of the Delhi High Court in THAKURI BAI v. LAXMI CHAND2. In that case execution petition was dismissed for default on the ground that legal representatives of the deceased decree holder were not brought on record. It was stated that the E.P. proceedings abated. It was held by the Delhi High Court that Order 21 Rule 105 C.P.C. is not applicable to the facts of that case. This decision also has no application to the present case.

The main contention of the contesting respondent is that the petition u/s 5 of the Limitation Act is not maintainable. The executing Court stated in its order that sub-rule (4) was included in Order 21 Rule 106 C.P.C. by amendment. Sub-rule (4), as inserted, makes the provisions of Section 5 of the Indian Limitation Act, 1963 applicable to the applications made under sub-rule (3) of Order 21 Rule 106 C.P.C. The learned counsel for the respondent relied upon a latest judgment of this Court in GUNDA JAGAN MOHAN RAO v. KANNETI KRISHNAIAH3. My learned brother Justice I. Venkatanarayana held that Section 5 of the Limitation Act is not applicable to proceedings in execution under Order 21 C.P.C. In that case the petition was filed u/s 5 of the Limitation Act to condone the delay in filing the petition to set aside the order of dismissal for default dismissing the application filed under Order 21 Rule 58 C.P.C. for raising attachment. His Lordship followed a judgment of the Division Bench of this Court in B.SANTAMMA v. B.KOTI REDDY4. The Division Bench held that amendment by the High Court incorporating sub-rule-(4) cuts into the main provision and it is at variance with the main provision and the amendment being not in conformity with the main provision and inconsistent with the main provision cannot subsist in view of Section 97 of the Amending Act. The Division Bench categorically held that Section 5 of the Limitation Act is not applicable to the provisions under Order 21 C.P.C.

In view of the above two decisions, it is very clear that petition u/s 5 of the Limitation Act to condone the delay in filing the restoration petition is not at all maintainable. Even otherwise as already noticed, the delay is not properly and satisfactorily explained by the auction purchaser. Seen from any angle there are no grounds to interfere with the order of the executing Court. Accordingly the C.R.P. is dismissed. No costs.