ADONIS LIMITED Vs. NAROTAM SAYAL

JUDGEMENT

(1.) EA(OS) No. 348/2016 (Restoration of Ex.P.61/2012) and EA(OS) 349/2016 (Condonation of delay in filing) in Ex.P.61/2012

(2.) The respondents have opposed the above applications principally on the ground that Sec. 5 of the Limitation Act, 1963 is inapplicable in respect of any application filed under Order 21 of the Code of Civil Procedure, 1908 (hereafter 'CPC'). The learned counsel for the respondents also drew the attention of this Court to Order 21, Rule 106 of the Civil P.C. which, inter alia, provides that an applicant, against whom an order is made under Sub-rule 2 of Rule 105 Order 21, may apply for setting aside the said 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 would set aside the order on such terms and at such costs as it thinks fit. However, Sub-rule 3 of Rule 106 expressly provides that an application under Sub-rule 1 of Rule 106 Order 21 of the Civil P.C. is to be made within 30 days from the date of the order. It was submitted that since, admittedly, the present application for restoration of the execution petition was filed beyond the period of 30 days, the same was liable to be rejected.

(3.) Mr. Sikri, learned counsel appearing for the applicant did not dispute that the provisions of Sec. 5 of the Limitation Act, 1963 were inapplicable in respect of any application under Order 21 of the CPC. He, however, earnestly contended that the order dated 18.01.2016 dismissing the execution petition was not in terms of Rule 105 Order 21 Civil P.C. since according to him, the execution petition, which was dismissed on that date, was not set down for hearing. He submitted that although the execution petition was listed on that date, the Court had not set down the petition for hearing and the matter was listed for hearing of the applications - EA(OS)530-531/2012. The execution petition was also listed on 18.01.2016 but hearing of the petition was subject to the issue regarding the execution of a foreign decree by a Hong Kong Court being decided by the Honourable Supreme Court in the pending matter. He further submitted that the matter had been deferred on various occasions awaiting the decision of the Supreme Court on the aforesaid issue. As on 18.01.2016, the Supreme Court had not delivered the decision in question (which was only delivered on 15.04.2016) and therefore, the execution petition was not to be taken up for hearing. He relied on the decisions of the Division Bench of this Court in Formosa Plastics Corporation, USA Vs. Ashok Chauhan & Ors.: 2016 SCC OnLine Del 3141; and Deutsche Ranco GmbH Vs. Mohan Murti: 176 (2011) DLT 280 (DB) in support of his contention.