Vijaya Trading Company v. M.R. Rajagopalan, Somasundharan and Sunitha

1 OP(C).No.1174 OF 2020 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 12TH DAY OF NOVEMBER 2020 / 21ST KARTHIKA, 1942** ## **OP(C).No.1174 OF 2020** **AGAINST THE ORDER/JUDGMENT IN E.P NO.471/2010 DATED 5.3.2013 IN E.A NO.61/2018 IN EP.NO.471/2010 IN OS 603/1999 DATED 27-07-2019 OF PRINCIPAL SUB COURT,THRISSUR** ## **PETITIONER/S:** **VIJAYA TRADING COMPANY,** **NATTIKA,CHAVAKKAD TALUK,REPRESENTED BY MANAGING PARTNER T.K.SOMASUNDHARAN,AGED 82 YEARS,S/O.THOTTUPURA KUNJIRAMAN, PUNKUNNAM VILLAGE,KOTTAPURAM DESOM,THRISSUR TALUK.** **BY ADVS. SRI.LINDONS C.DAVIS SMT.E.U.DHANYA SRI.RAJITH DAVIS** ## **RESPONDENT/S:** **1 M.R. RAJAGOPALAN, S/O.MARAD RAMANKUTTY,NATTIKA AMSOM, DESOM,CHAVAKKAD TALUK,THRISSSUR DISTRICT,PIN680566. 2 SOMASUNDHARAN, S/O.CHANKARAMKULATH GOPALAKRISHNAN,NATTIKA AMSOM,DESOM,CHAVAKKAD TALUK,THRISSUR DISTRIC,PIN680566. 3 SUNITHA, W/O.MARAD SATHYAVRIDHAN,NATTIKA AMSOM,DESOM,CHAVAKKAD TALUK, THRISSUR DISTRICT,PIN-680566.** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 12.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 OP(C).No.1174 OF 2020 ## **C.S.DIAS, J. ====================== OP(C) No. 1174 of 2020 ====================== Dated this the 12[th] day of November, 2020.** ## **JUDGMENT** This original petition is filed under Article 227 of the Constitution of India, to set aside Exts P2 and P3 orders passed by the Court of the Subordinate Judge, Thrissur. 2. The case of the petitioner in the original petition, in brief, is that, the petitioner had filed EP No.471/2010, to execute the decree passed in O.S No.603/1999, against the respondents. However, the Execution Court by Ext P2 order dismissed the execution petition on the ground that the petitioner had not taken steps to prove the means of the respondents (mistakenly mentioned as decree-holder). The petitioner thereafter filed EA No.61/2018 to restore the execution petition, but the Execution Court dismissed the application by Ext P3 order on the ground that the period for restoration of the execution petition is one 3 OP(C).No.1174 OF 2020 month and that Sec.5 of the Limitation Act is not applicable to the petition filed under Order XXI of the Code of Civil Procedure (“Code” for short). The petitioner has relied on the decision of this Court in **Radhakrishnan vs State of Kerala [2006 (1) KLT 28]** to drive home his contention that there is no prescribed time period for seeking restoration of an application, which was dismissed other than for default. The execution petition was not dismissed for non-appearance of the respondent, but for the reason that the petitioner could not prove the means of the respondents. Moreover, the petitioner has sought for simultaneous execution against the respondents. Therefore, the Execution Court ought to have proceeded to attach the properties of the respondents instead of perfunctorily dismissing the execution petition. Hence, the petitioner seeks to set aside Exts P2 and P3 orders passed by the Execution Court. 3. Even though notice in the original petition was served on the respondents, there is no appearance for 4 OP(C).No.1174 OF 2020 them. 4. Heard the learned counsel appearing for the petitioner. 5. The sole question that emerges for consideration in this original petition is whether Rule 106 of Order XXI of the Code of Civil Procedure gets attracted when an execution application gets dismissed other than a dismissal under Rule 105 (2) of the Code. 6. The above legal position is no longer res integra in view of the declaration of the law by this Court in **Radhakrishnan** (supra). This Court in paragraph 4 of the said judgment has held as follows: 4. X X X X X An application under O. 21 R.106 (1) CPC postulates the passing of an order under sub-rule 2 of R.105 of order 21 CPC. Dismissal of an application under sub-rule 2 of R.105 of O.21 CPC 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-rule 2 of R.105 of O.21 CPC. If so, the dismissal of the execution petition on 20.5.1998 was 5 OP(C).No.1174 OF 2020 not really one under sub-rule 2 R.105 of O.21 CPC. This means that EA 245/1998 though one filed under O.21 R.106 (1) CPC was really one under S.151 CPC 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 not time limit prescribed for filing an application for restoration by invoking the inherent power of the court under S.151 CPC. A similar situation pointedly arose before the Madhya Pradesh High Court in Khoobchand Jain and Anr. v. Kashi Prasad & ors [AIR 1986 MP 66] wherein it is observed as follows: “In my opinion the date on which the 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 R.105 (2) of O.21 of the CPC., and therefore the provisions of R.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. xxx xxx xxx xxxx xxx 20. 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”. 7. A reading of Ext P2 order substantiates that the execution petition was dismissed by the court below for the reason that the petitioner did not take steps to prove the means of the judgment-debtor. 6 OP(C).No.1174 OF 2020 8. On a perusal of Ext P1 execution petition, it is seen that the petitioner had sought for simultaneous modes of execution. Therefore, the court below, if it found that the petitioner could not prove the means of the judgmentdebtors, ought to have permitted the petitioner to resort to the other mode of execution, which was not done. Hence, the dismissal of Ext P2 is erroneous and wrong and liable to be set aside. 9. It is seen from Ext P2 order that the application was filed under Sec.151 of the Code. In view of the law laid down by this Court in **Radhakrishnan** (supra), that when a dismissal is not under sub-rule (2) of Rule 105 of Order XXI of the Code, the provisions of Rule 106 will not stand attracted, I hold the time period of thirty days prescribed under sub-rule (3) of Rule 106 of the Code does not get attracted. Hence, the finding in Ext P3 is erroneous and is liable to be set aside. 10. In light of the ratio in **Radhakrishnan** (supra) and the facts and circumstances of the case and in exercise 7 OP(C).No.1174 OF 2020 of the supervisory powers of this Court under Article 227 of the Constitution of India, I set aside Exts P2 and P3 orders. The Court of the Subordinate Judge, Thrissur is directed to restore E.P No.471/2010 to its file and bring the execution proceedings to its logical conclusion, in accordance with law. The original petition is ordered accordingly. **Sd/-** **C.S.DIAS** Sks/12.11.2020 **JUDGE** 8 OP(C).No.1174 OF 2020 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A COPY OF THE E.P.NO.471/2010 IN O.S.NO.603/1999 FILED BEFORE PRINCIPAL SUB COURT,THRISSUR.** **EXHIBIT P2 A TRUE COPY OF THE ORDER DATED 05.03.2013 IN E.P.NO.471/2010 IN O.S.NO.603/1999 OF THE PRINCIPAL SUB COURT,THRISSUR.** **EXHIBIT P3 A COPY OF THE ORDER DATED 27.07.2019 IN E.A.NO.61/2018 IN E.P.NO.471/2010 IN O.S.NO.603/1999 OF THE PRINCIPAL SUB COURT,THRISSUR.**