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Budha Chandra Singha v. Dhaneshwar Singha

Gauhati HC17 Sept 2019CRP/29/2019

Case brief

AI extract

What is this about?

This revision petition challenges the High Court holding that an application under Order XXI Rule 106(1) CPC to set aside a dismissal for default must be filed within thirty days of the order. The court applied Damodaran Pillai, ruling that Section 5 of the Limitation Act does not apply. Since the application was filed after thirty days without express power to condone, the trial court lacked juri

What did the court decide?

The impugned order dated 18.12.2018 passed in Money Execution case No.9/2016 is set-aside.

Budha Chandra Singha Vs Dhaneshwar Singha — Execution and Attachment | Gauhati HC (2019)

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GAHC010044622019

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THE GAUHATI HIGH COURT

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(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : CRP 29/2019

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1:BUDHA CHANDRA SINGHA

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S/O. LATE CHAIKOI SINGHA, VILL. PURBOKITTERBAND PART-I, P.O. AMALA, P.S. LALA, DIST.- HAILAKANDI, ASSAM, PIN- 788164.

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VERSUS

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1:DHANESHWAR SINGHA

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S/O. LATE BHANU SINGHA, VILLAGE- NIMACHANDPUR PART-I, P.S. LALA, DIST. HAILAKANDI, ASSAM. PIN- 788164.

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Advocate for the Petitioner : MR. K A MAZUMDER

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Advocate for the Respondent : MR G N SAHEWALLA

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BEFORE HONOURABLE MR. JUSTICE MIR ALFAZ ALI

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ORDER

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Date : 17-09-2019

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Heard Mr. K A Mazumdar, learned counsel for the petitioner and Mr. GN Sahewalla, learned senior counsel for the respondent.

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The challenge in this revision petition is to the order dated 18.12.2018 passed by the learned Civil Judge, Hailakandi, whereby, the execution proceeding, which was dismissed for default was restored.

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The facts leading to the present revision petition are that the respondent as plaintiff filed the Money Suit No.18/2014, which was decreed and the execution

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proceeding was initiated, which was registered as Money Execution case No.09/2016. The decree holder/ respondent failed to appear on various dates and therefore, the execution proceeding was dismissed for default by order dated 15.03.2018. Thereafter, the decree holder/respondent filed an application under Order IX Rule 9 CPC, praying for setting aside the order of dismissal and to restore execution proceeding, which was allowed by the learned Civil Judge by the impugned order.

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Learned counsel for the petitioner referring to Sub-rule (3) of Rule 106 of Order 21 of the CPC contends, that the petition filed by the decree holder/respondent for setting-aside the order of dismissal of the execution proceeding was barred by time, however, the learned Civil Judge allowed the petition without considering the provision of law laid down in sub-rule (3) of Rule 106 and thereby committed illegality.

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Learned senior counsel Mr. GN Sahewalla submits that the revision petitioner/judgment debtor filed an appeal against the decree along with an application for condonation of delay and the respondent/decree holder was also pursuing the said petition filed along with the appeal and therefore, the respondent was under the impression, that since appeal has been filed, execution case may not proceed. After rejection of the petition for condonation of delay, the decree holder/respondent came to know abut the dismissal of the execution proceeding. Apparently, the execution proceeding was dismissed for default by order dated 15.03.2018 and a petition under Order IX Rule 9 CPC for setting aside the dismissal and restoration of the execution proceeding was filed on 11.06.2018.

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Order XXI Rule 105 & 106 CPC reads as under:

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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.

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(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 is dismissed.

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(3) Where the applicant appears and the opposite party to whom the notice has been issued by the Court does not appear, the Court may hear the application ex-parte and

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pass such order as it thinks fit.

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Setting aside orders passed ex parte, etc. – (1) 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 satisfied 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 or such terms as to costs, or otherwise as it thinks fit, and shall appoint a day for the further hearing of the application.

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(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.

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(3) An applicant 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 applicant had knowledge of the order.

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A plain reading of the above provision of sub-rule (3) makes it amply clear, that an application under rule 106(1) for setting aside the order of dismissal passed in an execution proceeding under sub-rule (2) of Rule 105 has to be filed within thirty days from the date of order. However, in case of an ex-parte order passed under sub-Rule (3) of Rule 105, where notice was not served, the petition under section 106(1) has to be filed within thirty days from the knowledge of the order. Therefore, in any case, period of limitation for filing an application for setting aside an order of dismissal of the execution proceeding, starts from the date of the order and not from the date of knowledge. Since the provision of section 5 of the limitation act does not apply in case of any application under the provision of Order XXI CPC, there is no question of extension of time or condonation of delay and as such, the application under order 21 rule 106(1) must be filed within the time prescribed in sub-rule (3) of rule 106.

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In the present case, admittedly the execution petition was dismissed on 15.03.2018 for default. Therefore, the application under Rule 106 (1) CPC ought to have been filed within 30 (thirty) days from 15.03.2018, when the execution proceeding was dismissed for default. Whereas, the application for setting aside the order of dismissal was filed on 11.06.2018, and as such, there was a delay of about 2 (two) months. Since section 5 of the Limitation act does not apply in the case of

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an application under Order 21 Rule 106, the learned Court did not have jurisdiction to entertain the application for setting aside the order of dismissal passed under Rule 105 (2), beyond the statutory time of thirty days. Therefore, apparently learned Court committed a jurisdictional error by entertaining the application under Order 21 rule 106 (1) beyond the period of thirty days.

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In Damodaran Pillai and Others Vs. South Indian Bank Ltd (2005) 7 SCC 300, the Apex Court had the occasion to deal with the power of the Court to entertain an application under Rule 106 (1) of Order 21 CPC, the apex Court held as under:

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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.

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Learned executing court entertained the application under rule 106 (1) which was barred by time, and allowed the petition with the observation, that unless the execution proceeding is restored by setting aside the dismissal order, the decree passed validly would remained a paper decree. Therefore, from the tone and tenor of the impugned order, it appears that learned executing court exercised the inherent power to entertain the application which was barred by time. As already indicated above, the application of section 5 of the Limitation Act is expressedly barred in any application under order XXI of the CPC. When there was no express provision empowering the Court to condone the delay in filing an application under

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section 106(1), and application of section 5 of the limitation act was also barred, the Court was apparently denuded of the power to extend time for filing an application under section 106(1) of the CPC. It is the settled position, that in absence of any express power to condone the delay, Court could not invoke inherent power to entertain a time barred application, nor the Court could extend the time for filing an application under order 21 rule 106(1) CPC. The Apex Court in Damodaran Pillai and Others Vs. South Indian Bank Ltd (supra), observed that in absence of express power to condone delay Curt cannot invoke inherent power to do the same. The Apex court held as under:

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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. 16. 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.

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Faced with the above situation, learned senior counsel Mr. GN Sahewalla contends that the order passed by the learned trial Court falls in the realm of discretionary order and therefore, such order cannot be interfered in exercise of supervisory power under Article 227 of the Constitution. I am unable to persuade myself to accept the above contention of Mr. GN Sahewalla, for the reason that Court cannot exercise its discretion to exercise a power not vested in it. If discretion is exercised to do something, for which it is not empowered, such discretion cannot be construed as judicial discretion, rather, a discretion exercised illegally and improperly. Illegal and improper exercise of discretion or exercising discretion without power express or implied is a jurisdictional error. When a jurisdictional error is committed by the subordinate Court, the High Court should, and has to interfere to correct such jurisdictional error either under Article 227 of the Constitution or by exercising the revisional power.

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In any view of the matter, the impugned order having been passed by the learned trial Court without jurisdiction, the same cannot be allowed to stand. Accordingly, the impugned order dated 18.12.2018 passed in Money Execution case No.9/2016 is hereby set-aside.

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The petition stands allowed and disposed off.

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J U D G E

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Smita

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Comparing Assistant

Budha Chandra Singha v. Dhaneshwar Singha

Case brief

What is this about?

What did the court decide?

Budha Chandra Singha v. Dhaneshwar Singha

Case brief

What is this about?

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