D RADHAKRISHNAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THE first defendantfirst judgment debtor and legal representatives of the 4th judgment debtor in O. S. No. 156/1985 on the file of the I Addl. Sub Court, Thiruvananthapuram are the petitioners in these Writ Petitiones filed under Articles 226 and 227 of the Constitution of India. The said suit was one for realization of a sum of Rs. 1,87,219. 25/- from the defendants of whom the first defendant is the principal debtor and the other defendants represent the inters of the guarantors. The said suit was recreed on 12-9-1986. On 6-3-1998 the plaintiff/decree holder-Bank filed E. P. 65/1998 for executing the decree by attachment and sale of the charged properties. As on 6-3-1998 the total amount due with interest was Rs. 5,20,638. 08. After the judgment debtors filed their objection the E. P. , the E. P. stood posted to 20. 5. 1998. On that day for the reason that there was no representation on behalf of the decree holder-Bank, the E. P. was dismissed for default. On 9-11-1998 the decree holder filed E. A. 245/1998 for restoration of the E. P. Which had been dismissed for default. The said application was filed under Order 21 R. 106. C. P. C. with a prayer to condone the delay, set aside the order dismissing the execution petition and restore the same. The affidavit of Adv. Sri. Kunjukrishnan Potti of Trivandrum Bar who was appearing for the decree holder-Bank was also filed along with the said application. In the said affidavit it was stated that the execution petition was posted to 8-4-1998 for putting up the back records and on that day his former clerk had noted the next posting dated as 17-7-1998 instead of 20-5-1998 and it was the new Clerk who discovered on 30-10-1998 that the E. P. had been dismissed for default on 20-5-1998 and this fact could be discovered only after tracing out the file by the new clerk and that there was no willful default, negligence or laches on the part of the decree holder or the counsel in not appearing before the court on 20-5-1998 and that about Rs. 5 lakhs is to be realized from the judgment debtors and unless the execution petition is restored to file the decree holder will suffer irreparable loss and hardship. The above application was vehemently opposed by the judgment debtors including the petitioners herein who inter-alia contended that the restoration petition filed under 0. 21 R. 106 C. P. C. was hopelessly time barred and that the delay could not be condoned by resort to Sec. 5 of the Limitation Act. Over-ruling the said objection the court below as per order dated 7-6-2004 allowed E. A. 245/1998 on condition that the decree holder deposits Rs. 500/- with the Kerala State Legal Services Authority and on payment of Rs. 250/- to the first judgment debtor and Rs. 250/- to judgment debtors 10, 11 and 12 on or before 21-6-2004. Aggrieved by the above order the petitioners herein filed applications for review as E. A. Nos. 528/04 and 904/04. Both the review petitions were dismissed as per order dated 9-8-2004. It is the said order which is assailed in these Writ Petitions.

(2.) I heard the learned counsel appearing for the respective petitioners and the learned counsel appearing for the decree holder/union Bank of India.

(3.) ASSAILING the orders passed by the Executing Court the learned counsel appearing for the petitioners in both the Writ petitioners made the following submissions before me:-The E. P. was dismissed for default on 20-5-1998. The time within which a restoration petition under Order 21 Rule 106 (1) C. P. C. should be filed is 30 days as stipulated under sub-rule (3) of Order 21 Rule 106 C. P. C. This was a case where the decree holder was represented by a counsel. Hence the application under Order 21 R. 106 (1) C. P. C should have been filed on or before 19-6-1998. E. A. 245/98 under Order 21 R. 106 C. P. C. was admittedly filed only on 9-11-1998. It is thus filed long after the time stipulated under sub-rule (3) of R. 106 of O. 21 C. P. C. Sec. 5 of the Limitation Act has no application to all proceedings in execution including a petition under Order 21 R. 106 C. P. C. hence E. A. 245/98 was hoplessly time-barred and the prayer to condone the delay in filing the said petition was misconceived. (Vide Francis v. John - 2004 (3) KLT 1113 and Damodaran Pillai v. South Indian Bank Ltd.- 2005 (4) KLT 192 (SC ). The Court below was therefore not justified in allowing E. A. 245/1998 and dismissing the review petitions filed against the said order.