KOCHUPENNAMMA Vs. BANK OF DECCAN LTD

JUDGEMENT

(1.) THE decree sought to be executed is barred under article 136 of the Limitation Act of 1963 "this is the gist of the argument advanced by Sri S.Subramonia Iyer,the learned counsel for the appellants in this second appeal.The con­tention of Sri T.V.Ramakrishnan,the learned counsel for the respondents,on the other hand is that the petition from which this second appeal has arisen is the continuation of an earlier application for execution filed within time,but happened to be dismissed for default,and in that view the execution was not barred by limitation.A further con­tention raised by the learned counsel for the respondents,which does not appear to have been raised in the courts below,is that in any event by the operation of section 45(O )(1)of the Banking Regulation Act,1949,the execu­tion petition is saved from limitation.

(2.) THE undisputed facts leading to this second appeal,briefly stated,are the following: -The Munsiff's Court passed the decree sought to be executed on 24th February 1965.On 18th January 1966 E.P.No.34 of 1966 was filed.On 23rd September 1969 the execution court ordered production of encumbrance certificate by 8th October 1969.On 8th October 1969 the decree -holder applied for time for the production of the encumbrance certificate,as he could not get it by then.The petition was adjourned to 21st October 1969.On 21st October 1969 also the.decree -holder applied for time to produce the encumbrance certificate.The petition was then adjourned to 30th October 1969.On 30th October 1969 the decree -holder again applied for time.Rejecting the prayer for adjournment the court dismissed the execution petition on 30th October 1969 for default.On 17th November 1969 the decree -holder filed E.P.No.315 of 1969.The prayer in the petition,inter alia,reads as follows: - Malayalam The executing court disposed of the judgment -debtor's objection to E.P.No.315 of 1969 in the following words:" "The only objection that is pressed by the learned counsel for defendant is that the present E.P.is barred by limitation.The prior E.P.filed by the decree -holder was dismissed on 30th October 1969 since he failed to produce the Revenue Extract and Encumbrance Certificate.So the dismissal of the prior E.P.is not a judicial dis­missal.So,the E.P.has to be treated as a continuation of the prior E.P.So the decree is not barred by limitation.Hence the objec­tion is overruled. Proclamation notice 29th November 1970 " ;. While disposing of the appeal filed by the judgment -debtor against the decision of the learned Munsiff,the learned Subordinate Judge observed as follows: - "The order no doubt,is a judicial one disposing of the then pending execution petition.However the prayer in the next appli­cation filed includes one for review of this order and for restoring the E.P.to file.The decree -holder cured the defects and had also shown sufficient cause for the default.The execution court has chosen to condone the delay in exercise of its discretion in holding that the present E.P.is to be treated as a continuation of the prior E.P .,though the approach made seems to be not quite correct.The conclusion cannot be assailed and I do not see any reason to interfere with the order that had been passed only in the discretion of the court." The view taken by the learned Munsiff that the dis­missal of the prior E.P.was not a judicial one is obviously incorrect.The learned counsel for the respondents does not seriously dispute this position.The contention of the learned counsel for the appellants is that the first appellate court while correctly holding that the order of dismissal was a judicial one,fell into an error in taking the view that the execution court had the discretion to condone the delay,as though section 5 of the Limitation Act applies to exe­cution proceedings.Here also the learned counsel for the respondents concedes that section 5 of the Limitation Act will have no application to the facts of the case for the obvious reason that section 5 of the Act is specific that it will have no application to execution proceedings.

(3.) THE learned counsel for the respondents has raised a contention with respect to the maintainability of the second appeal.According to him,even a first appeal was not competent and,as such,this appeal purported to be one from the decree passed in the first appeal also cannot be maintained.He argues that the order passed in execution is covered by rule 104(2)of Order 21 C.P.C,and therefore no appeal from that order is possible.Rule 104(2)of Order 21 C.P.C,reads as follows: "No appeal shall lie from any order passed in appeal under this section." The contention of the learned counsel for the appellant,however,is that this is a matter that arises under section 47 C.P.C.and therefore both the appeal and the second appeal are competent.The counsel submits that the orders of the courts below themselves would show that the matter has been treated as one arising in execution coming within the ambit of section 47 C.P.C .,as it relates to execution,discharge or satisfaction of the decree that has been passed by the Munsiff's Court.It is also pointed out that rule 104(2)of Order 21 C.P.C.would apply only to the case in which the application is dismissed for non­appearance of the applicant.Default may arise in two ways;either because of the non -appearance of the party or counsel for the party,or it may arise on account of failure to take certain steps legally required to be taken by the party,or as directed by the court.In this case,it was because the decree -holder failed to produce the encum­brance certificate on the due date that the execution petition happened to be dismissed.The submission of Sri Ramakrishnan,counsel for the respondents,is that though the counsel was physically present in court,virt­ually his presence was of little consequence from the point of view of the prosecution of the case.In support of his contention that the presence of the counsel could not be considered as effective appearance in court as contemplated in the provisions of the Code of Civil Procedure,my attention has been drawn to a decision of Krishna Iyer,J.in Kuruvilla Chandy v. Hassan Bava Rawther 1969 K.L.T 402 wherein it has been observed " "But I am inclined to take the view that a beneficial provision calculated to help a party in default should be so construed as to give the benefit of reasonable doubt,if doubt exists,in favour of the party in default.Even otherwise,appearance by pleader in court has a purpose to serve and if the presence of the advocate does not serve that purpose it is as good as non -appearance from the point of view of the party." It is fairly clear that the dismissal of the petition on 30th October 1969 in the present case was for non -compliance with the direction of the court with respect to the production of encumbrance certificate.It is not a case of dismissal for non -appearance of the party,or due to the refusal on the part of the counsel for the petitioner to participate in the proceedings on the plea that he had not received instruc­tions from his client.A distinction has to be drawn between the case in which the counsel expressing his helplessness to proceed with the case on account of the client's failure to comply with the direction of the court,applies for adjournment on the one hand,and the case in which the counsel reports no instruction or refuses to proceed with the prosecution of the case for not having received instruction from his client.In the former case,it was immaterial whether it was the client himself or his counsel that was present when the case was called,as the fact remains that the direction was not complied with and the case could not have been proceeded with in spite of the client or his counsel being present when the case was called.Even by taking a liberal view,it is difficult to treat the dismissal of the case in such circumstances as one for non­appearance of the party.Moreover,it has to be remem­bered that the provisions contained in Order 17 are not applicable to proceedings under Order 21.My conclusion,on a careful consideration of the facts brought to my notice,is that the dismissal of the petition on 30th October 1969 was not under Order 21,rule 104(2 ),C.P.C.