Chellamma v. Somakkumari and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN TUESDAY, THE 28TH DAY OF OCTOBER 2014/6TH KARTHIKA, 1936 CRP.No. 88 of 2010 ( ) ----------------------AGAINST THE ORDER DATED 09-09-2009 IN EA 370/08 IN OS 716/1994 OF PRINCIPAL SUB COURT, KOLLAM REVISION PETITIONER(S)/PETITIONER/DECREE HOLDER: ------------------------------------------------------------------------------ CHELLAMMA, D/O.AMMAKUNJU, PALLIKADAVIL, KALLIKATTUTHARAYIL, ARATTUPUZHA VILLAGE, ALAPPUZHA DISTRICT, KARTHIKAPPALLY TALUK. BY ADV. SRI.R.AZAD BABU RESPONDENT(S): COUNTER PETITIONER/2ND JUDGMENT DETOR & LRs OF ----------------------- 1ST JUDGMENT DEBTOR ---------------------------------------------------------------------------- ## 1. SOMAKUMARI, W/O.K.SUGATHAN, THEKKADATHUVILA, PATTATHANAM, KOLLAM. 2. RAJESH, S/O.K.SUGATHAN, DO. DO. 3. REEJA, D/O.K.SUGATHAN, DO. DO. R1 TO 3 BY ADV. SRI.B.SURESH KUMAR THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28-10-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **K.T.SANKARAN, J.** -------------------------------C.R.P.No.88 of 2010 --------------------------------Dated this the 28[th] day of October, 2014 ## **O R D E R** The petitioner, the decree holder in O.S.No.716 of 1994 on the file of the Court of the Principal Sub Judge, Kollam, filed E.P.No.399 of 2006 on 8.12.2006 for realisation of the decree amount of `1,71,347/-. The Execution Petition was posted for taking steps on 1.3.2008. On that day, the counsel for the decree holder was not present. Steps were also not taken. The executing court dismissed the Execution Petition on 1.3.2008 for default. On 21.6.2008, the decree holder filed E.A.No.370 of 2008 under Rule 106 of Order XXI of the Code of Civil Procedure. That application was filed beyond 30 days as provided under Sub-rule (3) of Rule 106 of Order XXI of the Code of Civil Procedure. The court below dismissed E.A.No.370 of 2008 on the ground that the application was not filed within time and that Section 5 of the Limitation Act is not applicable to any proceeding under Order XXI of the Code of Civil Procedure. CRP 88/2010 2 2. The first judgment debtor was the brother of the decree holder. He died pending Execution Petition. His wife is the second judgment debtor. Their children were sought to be impleaded as supplemental respondents. The prayer in the Execution Petition was to arrest and detain the first judgment debtor in civil prison and also to attach and sell the movable and immovable properties belonging to the judgment debtors. 3. The decree holder had filed E.P.No.54 of 1999 on an earlier occasion and that Execution Petition was dismissed for default on 30.9.2002. The present E.P., namely, E.P.No.399 of 2006 was filed about 4 years thereafter. 4. In E.P.No.399 of 2006, the court directed the decree holder to take steps to serve notice on the additional respondents sought to be impleaded. The Execution Petition was posted to 1.3.2008 for taking steps. On that day, the Execution Petition was dismissed for default. 5. Sri.Azad Babu, the learned counsel appearing for CRP 88/2010 3 the petitioner, submitted that the executing court was not justified in dismissing E.A.No.370 of 2008 on the ground that the delay could not be condoned. The counsel submitted that the application was really under Section 151 of the Code of Civil Procedure. Rule 106 of Order XXI would not apply since the Execution Petition was not posted for hearing and the dismissal was not on the ground of non appearance of the petitioner on the day fixed for hearing. The learned counsel relied on the decision of the Kerala High Court in Radhakrishnan vs. State of Kerala (2006 (1) KLT 28) and Khoobchand Jain and another vs. Kashi Prasad and others (AIR 1986 Madhya Pradesh 66) and in Deo Narayan Goala and others vs. Jagadish Pandit (AIR 1985 Gauhati 49) in support of his contention. 6. Sri.B.Suresh Kumar, the learned counsel for the respondents submitted that E.A.No.370 of 2008 was filed under Rule 106 of Order XXI C.P.C.. An application under Rule 106 should be filed within 30 days as mentioned in Sub Rule (3) thereof. Section 5 of the Limitation Act specifically excludes CRP 88/2010 4 the provisions of Order XXI of the Code of Civil Procedure from its purview and therefore, the executing court had no jurisdiction to condone the delay in filing the application under Rule 106 of Order XXI C.P.C. The learned counsel relied on the decisions of the Supreme Court in Damodaran Pillai vs. South Indian Bank Ltd. (2005(4) KLT 192 (SC)) and Vijayamma vs. Santhakumari Amma (2008 (2) KLT SN 17 Case No.19). 7. In Radhakrishnan vs. State of Kerala (2006 (1) KLT 28), a learned Single Judge of this Court (Justice V.Ramkumar) dealt with a case where the Execution Petition was posted to a particular date with a direction to put up with the back records. Due to non appearance of the decree holder, the Execution Petition was dismissed for default. An Application under Rule 106(1) of Order XXI C.P.C. was filed. There was delay in filing the application. The executing court allowed the application and restored the Execution Petition. Dismissing the Writ Petition filed by the judgment debtor, it was held thus : “An application under O.21 R.106(1) C.P.C. postulates the passing of an order under sub-rule 2 of R.105 of order 21 C.P.C. Dismissal of an CRP 88/2010 5 application under sub-rule 2 of R. 105 of 0. 21 C.P.C. pre-supposes a posting of the case for hearing and failure on the part of the applicant to appear on that date. As noted earlier E.P. 65/1998 stood posted to 20-5-1998 not for hearing but for being put up with back records. It was really a direction to the Bench section to put up the execution petition together with back records. The question of posting the E.P. for hearing the same arises only after it is put up with back records. Hence 20-5-1998 was not a date fixed for hearing of the execution petition within the meaning of sub-r. 2 of R.105 of O.21 C.P.C. If so, the dismissal of the execution petition on 20-5-1998 was not really one under sub-r.2 R.105 of O. 21 C.P.C.. This means that E.A. 245/1998 though one filed under O.21 R.106 (1) C.P.C. was really one under S.151 C.P.C. invoking the inherent power of the court to restore the execution petition dismissed for default on a date on which the E.P. was not posted for hearing. There is no time limit prescribed for filing an application for restoration by invoking the inherent power of the court under S.151 C.P.C..” ## 8. In Radhakrishnan vs. State of Kerala (2006 (1) KLT CRP 88/2010 6 28), the decision of the Madhya Pradesh High Court in Khoobchand Jain and another vs. Kashi Prasad and others (AIR 1986 Madhya Pradesh 66) was relied on. In Khoobchand Jain's case, the executing court ordered to issue a warrant of attachment of movables, on furnishing a list of movable property and payment of process fee. The decree holders complied with the direction. Before the attachment could be effected, one of the judgment debtors objected against the attachment of movables. The executing court upheld the objection and directed the decree holders to furnish a fresh list of movables. The decree holders failed to submit the list of movables for the purpose of attachment. On the date fixed by the executing court, there was no appearance for the decree holders and therefore, the Execution Petition was dismissed for default. The decree holders filed an application under Rule 106 of Order XXI C.P.C. beyond the period of thirty days. The executing court dismissed the application. Allowing the Civil Revision Petition, the Madhya Pradesh High Court held : “18. In my opinion, the date on which the CRP 88/2010 7 execution application was dismissed for default of appearance of the decree holders, namely, 21.8.1979 was not a date fixed for 'hearing' within the meaning of Rule 105. It was a date awaiting report as to execution of the warrant which was supposed to be issued on submission of a list of movable property by the decree holders within three days of the earlier order dated 21.7.1979. Consequently, the dismissal of execution application on 21.8.1979 was not under Rule 105(2) of Order 21 of the Civil P.C., and therefore, the provisions of Rule 106 are not attracted. The dismissal of the execution application in default of appearance on 21.8.1979 is referable to inherent powers of the court.” 9. In Deo Narayan Goala and others vs. Jagadish Pandit (AIR 1985 Gauhati 49), the Execution Petition was dismissed on the ground that the decree holder failed to take necessary steps for proceeding with the execution. Since the steps were not taken, the Execution Petition was dismissed for default. By that time, the period of limitation for executing the decree had expired. The decree holder filed an application under Section 151 of the Code of Civil CRP 88/2010 8 Procedure to recall the order dismissing the Execution Petition for default. The Gauhati High Court held that Sub Rule 1 of Rule 105 of Order XXI C.P.C. requires the court to fix a date for hearing of the Execution Petition. It was further held thus: “Rule 105 however does not deal with the situation when an execution application is rejected on account of not taking the requisite steps in the case. It is quite plain from subclause (1) of Rule 105 that the court may fix a date for the hearing of the application. But before an application is set down for hearing, it should have in fact, ripened for the hearing. In other words, the judgment debtor should have the information that an application has been moved against him and he may show cause against the same. In order to serve notices on the judgment debtor certain steps are to be taken. If the decree holder does not take the requisite steps to serve notice on the judgment debtor, the execution application may be rejected on account of non-prosecution. But that order of rejection will not be covered by Rule 105, Code of Civil Procedure ; because, the date was not fixed for hearing the application but was fixed for taking requisite steps in the CRP 88/2010 9 case...................................................................... .................................... It cannot, therefore, be said that Rule 105 covers all the situations and if any application has to be made for setting aside the ex parte order, it should be only under Rule 106 of Order 21. In fact Rule 106 comes into play when an application was fixed for hearing and the applicant was absent at the time of the hearing and the application was therefore rejected. In the case in hand, the learned Munsiff rejected the execution application on the ground that the decree holder took no other steps for proceeding with the execution. Quite obviously, the execution application was not fixed on 11[th] July 1980 for its hearing. The petition No.49/11 filed by the judgment debtor was fixed for hearing and that petition was rejected on that day. After rejecting that application, the court below further passed an order dismissing the execution case for default on the ground that the decree holder took no other steps. This order was obviously not covered by the provisions of Rule 105 of Order 21, Code of Civil Procedure. Hence, the provisions of Rule 106 could not be invoked.” 10. The aforesaid three decisions apply to the facts of CRP 88/2010 10 the present case. 11. In Damodara Pillai vs. South Indian Bank Ltd. (2005 (4) KLT 192 (SC)), admittedly the Execution Petition was posted for hearing and on that day, it was dismissed for default. After 7 years, an application was filed for restoration of the Execution Petition. In that context, the Supreme Court held that the Execution Petition was dismissed under Rule 105 of Order XXI C.P.C. and the application for restoration having not been filed within time, the executing court had no jurisdiction to restore the Execution Petition. The decision of the Madhya Pradesh High Court in Khoobchand Jain and another vs. Kashi Prasad and others (AIR 1986 Madhya Pradesh 66) was cited before the Supreme Court in Damodaran Pillai vs. South Indian Bank Ltd. (2005(4) KLT 192 (SC)). The Supreme Court distinguished the decision of the Madhya Pradesh High Court on the ground that the Execution Petition was dismissed in that case on a day which was not fixed for hearing and the order of dismissal was not an order passed in terms of Sub-rule (2) of Rule 105 of Order XXI of the CRP 88/2010 11 Code of Civil Procedure. I agree with the view taken by Justice V.Ramkumar in Radhakrishnan vs. State of Kerala (2006 (1) KLT 28) including the finding that the Supreme Court in Damodaran Pillai's case did not disapprove the decision of the Madhya Pradesh High Court in Khoobchand Jain and another vs. Kashi Prasad and others (AIR 1986 Madhya Pradesh 66). 12. The Division Bench decision of the Kerala High Court in Vijayamma vs. Santhakumari Amma (2008 (2) KLT SN 17) does not apply to the facts of the present case. 13. Rules 105 and 106 of Order XXI C.P.C. are extracted below for easy reference. “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 CRP 88/2010 12 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. 106. Setting aside orders passed ex-parte, etc. (1) The applicant, against whom an order is made under subrule (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 that date when the applicant had knowledge of the order.” 14. Rules 105 and 106 of Order XXI C.P.C. were inserted by the C.P.C. Amendment Act 104 of 1976. Before such insertion, there were Rules in some of the States including CRP 88/2010 13 Kerala to deal with situations where parties failed to appear. Rule 105(4) of the Kerala Rules provided for application of Section 5 of the Limitation Act as well. Specific provision is made under Rule 105 providing that the executing court may fix a day for hearing of the application and for dismissal of the application for non appearance of the applicant on such date fixed for hearing. Provision has also been made under Rule 105(3) where the applicant appears and the opposite party does not appear. In such a situation, the executing court can hear the application ex-parte and pass such order as it thinks fit. By the explanation to Rule 105, it is made clear that an application under Sub rule (1) includes a claim or objection made under Rule 58. Rule 106 specifically provides for application to set aside the order passed under Sub-rules (2) or (3) of Rule 105 and Sub-rule (1) of Rule 23 of Order XXI C.P.C. If the applicant in an application under Rule 106 satisfies the court that there was sufficient cause for his non appearance when the application was called for hearing, the court shall set aside the order on such terms as to costs or otherwise as it thinks fit. CRP 88/2010 14 15. Rule 105 specifically provides that the executing court may fix a day for hearing of the application. The eventualities covered by Sub-rules (2) and (3) of Rule 105 could occur only in a case where the executing court did fix a day for hearing of the application. When no such day was fixed for hearing of the application, Rules 105 and 106 of Order XXI does not apply at all. When the Execution Petition is posted for taking steps before the date fixed for hearing, it is not covered by Rule 106 of Order XXI. The consequences of non appearance of the parties on any such day before the date fixed for hearing are not provided under Order XXI C.P.C. Those cases are covered by the inherent powers of the court which are saved under Section 151 of the Code of Civil Procedure. For filing an application under Section 151 C.P.C., no period of limitation is provided under the Code of Civil Procedure. Article 122 of the Limitation Act providing for a period of 30 days' time to file an application for restoration specifically relates only to a suit or appeal or application for review or revision dismissed for default of appearance or want of prosecution or for failure to pay costs of service of process CRP 88/2010 15 or to furnish security for costs. Article 122 does not cover any application other than the applications mentioned therein. If so, Article 137 of the Limitation Act which provides for a period of three years as limitation, in any other application for which no period of limitation is provided, would apply. Since the application is not under any of the provisions of Order XXI of the Code of Civil Procedure, but an application which is outside the scope of Order XXI C.P.C., Section 5 of the Limitation Act also would apply. 16. It is well settled that quoting a wrong provision of law is not a ground for dismissal of the application, provided the application is maintainable under any other provision of law. For the aforesaid reasons, I am of the view that the order passed by the court below is without jurisdiction. The order is accordingly set aside. I am satisfied that the reasons stated for filing the application are sufficient grounds for non appearance of the decree holder on the date on which the Execution CRP 88/2010 16 Petition was posted for taking steps. Accordingly, E.A.No.370 of 2008 shall stand allowed under Section 151 of the Code of Civil Procedure. The Civil Revision Petition is accordingly allowed as above. **K.T.SANKARAN** **JUDGE** csl