The High Court in Kerala rejected an execution appeal, holding that no appeal lies against a dismissal for non-prosecution under Order XXI CPC Rule 105(2); the remedy is Rule 106. Time taken will be excluded under Section 14 Limitation Act.
The appeal has been rejected and the appellant is directed to prefer an application under Rule 106 of Order XXI CPC.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
WEDNESDAY, THE 6th DAY OF APRIL 2022 / 16TH CHAITHRA, 1944
EX.FA NO. 24 OF 2021
AGAINST THE ORDER DATED 10.12.2021 IN EA 290/2021 IN EP 180/2018 IN
OS 750/1986 OF PRINCIPAL MUNSIFF COURT, KOZHIKODE-II
APPELLANT/CLAIM PETITIONER:
SMITHA, AGED 56 YEARS, D/O SARASWATHI, CHIRAKKUZHI, RAJEEV GANDHI COLONY, P.O. KANNANKARA, KANNAKARA AMSOM DESOM, CHELANNUR VILLAGE, CHELANNUR PANCHAYATH, KOZHIKODE TALUK.
BY ADVS. K.C.SANTHOSHKUMAR
K.K.CHANDRALEKHA
RESPONDENTS/RESPONDENTS:
Ex FA No.24 of 2021
2
MERIN THOMAS
R2 TO R10 BY ADV. K.S.SUHDA
THIS EXECUTION FIRST APPEAL HAVING COME UP FOR ADMISSION ON 06.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Ex FA No.24 of 2021
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JUDGMENT
This appeal is against the order of dismissal of an
application under Rule 97 of Order XXI C.P.C. for nonprosecution under Rule 105 (2) of Order XXI C.P.C., without adjudicating the issue under Rule 97 of that Order. Though an appeal is maintainable against the adjudication under Rule 97 of that Order (Ghan Shyam Das Gupta and Another v. Anant Kumar Sinha and Others - AIR 1991 SC 2251), no appeal can be preferred against the order of dismissal for nonprosecution which would come under the purview of Rule 105(2) of Order XXI C.P.C. The remedy is under Rule 106 of Order XXI C.P.C. As such, the appeal will stand rejected
so as to enable the party to exhaust the proper remedy under Rule 106 of Order XXI C.P.C. and the time taken for prosecuting this appeal i.e. from 27/12/2021 till 08/04/2022 will stand excluded under Section 14 of the
Limitation Act and the appellant will be at liberty to maintain an application in that behalf within that day or
Ex FA No.24 of 2021
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on the re-opening date of the court after summer recess.
The appeal will stand rejected accordingly.
The Registry shall communicate this judgment forthwith
to the Principal Munsiff Court-II, Kozhikode.
Sd/-
P.SOMARAJAN
JUDGE
DMR/-
1 issue framed by the court
Whether an appeal is maintainable against a dismissal of an application for non-prosecution under Rule 105(2) of Order XXI CPC.
Colour shows how this judgement treated each authority
Ghan Shyam Das Gupta and Another v. Anant Kumar Sinha and OthersReferred¶35
Ghan Shyam Das Gupta and Another v. Anant Kumar Sinha and Others - AIR 1991 SC 2251 · Who else cites this
3 provisions across 2 enactments
Smitha
Vazhayil Sivadasan
Soubagyan
Soumyendran
Snehaprabha
Usha
P. Somarajan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
