GIRIJAMMA Vs. B S MANICKYAM

JUDGEMENT

(1.) A rather unusual difficulty arose in this proceeding which has thrown up an interesting aspect of the law namely the question as to whether the provisions of Section 151, Civil Procedure Code can be pressed into service in order to get over certain other insurmountable legal hurdles, one of which is the bar of limitation. The petitioner before me is the original judgment-debtor and it is pointed out that a decree came to be passed against her on 20-10-1978. In respect of that decree, execution proceedings were taken out as late as 15-1-1990 which is almost on the eve of the decree getting time-barred. Undoubtedly, the proceedings were technically in time and the court entertained them but the record indicates that for one-and-half years thereafter the necessary procedures were not compiled with and ultimately the executing Court dismissed the application. On 10-7-1991, i. e. after 33 days, an application was made under Section 151, Civil Procedure Code for restoration of the proceedings which by implication meant setting aside the order dated 7-6-1991. The lower Court passed a short order mentioning that the applicant could not reinstitute the execution proceedings as the period of limitation was over and that even though numerous opportunities were given and the needful had not been done earlier, that the Court proposes to give the applicant one more chance. Therefore the proceedings were restored. Notice being issued to the original judgment-debtor, she filed an application styled as objections before the lower court pointing out that the application filed under Section 151, civil Procedure Code was not maintainable in law because it cannot be termed as an application for setting aside the dismissal order and more importantly, on the ground that such an application was not maintainable because the period of limitation within which an order of dismissal could be set aside namely 30 days had already elapsed and that therefore, even assuming the decree-holder desired to apply for setting aside the dismissal order dated 7-6-1991, that it was condition precedent for an application for condonation of delay to be first filed and that none of these applications could have been granted without notice to the judgment-debtor and that consequently, the order dated 12-7-1991 restoring the original proceeding should be reconsidered and set aside. The lower Court after hearing the parties negatived the objection that by restoring the matter, the period of limitation had virtually been extended and that the legal requirements had been by-passed and observed that the inherent powers vested in the Court under Section 151, Civil procedure Code were wide enough to permit the Court to exercise its discretionary jurisdiction and restore the original proceedings. The Court had occasion to observe that the question of limitation did not arise because the original proceeding was not in any case a time-barred one. The present civil revision petition is directed against that order.

(2.) THE petitioner's learned Advocate submits that there has been a wholesale breach of almost every conceivable provision of law including the procedural requirements of law and that therefore, the order of the lower Court must be set aside. He points out to me that in the first instance the execution application having been dismissed and the application for restoration having been filed after the period of limitation, that it could not have been entertained unless it was accompanied by an application for condonation of delay. Learned Advocate also assailed the invocation of the provisions of Section 151, Civil procedure Code by pointing out that it is only under the provisions of Order 9, Civil Procedure Code that an application for setting aside the order of dismissal could have been made and that therefore, the application itself was misconceived. His further submission was that since the period of limitation had expired, that rights have accrued in favour of his client and since this is a money decree it is virtually a right of immunity against execution of that decree and in these circumstances that such a right could never have been taken away without his client's being given notice which was condition precedent. Lastly, learned Advocate submitted that a perusal of the application made would indicate that even on merits, the present respondent who is the original decree-holder has not made out any case because it is only contended that he could not attend the Court on 7-6-1991 because he was admitted to the nursing home for one day and that he was advised rest of four weeks thereafter. Learned Advocate submits that this does not explain the total negligence and non-compliance for one-and-half years prior to that nor does it explain validly any reason as to why it became impossible for the application for setting aside to be filed under his instructions within the requisite period. In sum and substance, the learned Advocate submits that this is a case in which the order passed by the lower Court will have to be quashed. As an additional submission, he adds that the lower court has observed that this case involves extraordinary circumstances. Learned Advocate submitted that there are no such extraordinary circumstances that are made out and that therefore, even the exercise of discretion was unjustified.

(3.) THE respondent's learned Advocate raised a preliminary objection in so far as he submitted that the order dated 12-7-1991 is the order whereby the original proceeding was restored. He submits that the petitioner has not made any formal application either for recalling that order or for setting it aside instead of it, she has followed the peculiar procedure of filing what was called objections to that order which objections have been filed long after the order has taken effect. It is after hearing the parties that the lower Court has rejected the objections and the learned Advocate submits that the restoration order dated 12-7-1991 therefore subsists in so far as this civil revision petition is not directed against that order and that it is consequently not maintainable. Between the two sides, I notice that almost everything has gone wrong at all stages but I am not prepared to uphold this objection because to my mind it is hyper-technical. It is true that what was styled as objections was nothing other than an application to the Court to either reconsider or set aside the order dated 12-7-1991. It is unfortunate that the matter was conducted in this fashion before the Trial Court and it is hoped that the persons responsible for it will take note of the views expressed by this Court and ensure that such things do not recur in either this or any other case. The fact remains that an application was made and on that application necessary orders were required to be passed in respect of the restoration order dated 12-7-1991 and therefore, it will have to be treated as an application either for reconsideration or for setting aside. It is essential to my mind that these matters be decided on merits rather than on the basis of technical objections.