AYAPPA NAICKER Vs. SUBBAMMAL

JUDGEMENT

(1.) THE short fact leading to these two civil revision petitions is that O. S. No 417 of 1971 was filed by one Subbammal, the respondent in C. R. P. No. 2974 of 1981 on the foot of a promissory note. On 24th September 1971, it resulted, in an exparte decree for a sum of Rs 1,300 On 13th July, 1972 E. P. No. 348 of 1972 was filed and on 21st February 1973, a sale of an extent of 82 cents with the well took place. THE second respondent in C. R. P. No. 2975 of 1981 was the Court-auction-purchaser. THEreafter on 19th March 197 , the judgment-debtor filed an application under Order 21, rule 90, Civil Procedure Code to set aside the sale in E. A. No. 574 of 1973. In the meanwhile, the judgment-debtor's son claiming half-share in this property which was the subject matter of sale, filed OS. No. 670 of 1973. That suit was dismissed. Against that, A. S. No. 79 of 1974 was filed which was allowed. Ultimately the matter came up to this Court S. A. No. 922 of 1978. That was allowed on 21st June, 1971. What had happened during the interregnum was that on 23rd December, 1978 the application in E. A. No. 574 of 1973 was dismissed and the sale was confirmed on 7th July, 1979. E. A. No. 205 of 1979 was filed to restore E. A. No. 574 of 1973 and E. A No. 204 of 1979 was filed to set aside the confirmation of sale. THE executing Court passed an order dismissing the application. THEreupon the matter was taken up in C. M. A. THE lower appellate Court pointed out that by reason of the provision of Order 21, rule 106, Civil Procedure Code, the application should have been made within 30 days and therefore it could not be entertained. Accordingly, he confirmed the dismissal. Thus, these two revisions.

(2.) WHAT is argued by Mr. T. R. Mani learned counsel for the petitioner, is that it is not Order 21, rule 106, Civil Procedure Code, that would apply, but it is only Order 21, rule 10s that would apply. In so far as the Madras amendment states that the provisions of section 5 of the limitation Act of 1908 will apply to applications under sub-rule (1) of rule 105 of Order 21, Civil Procedure Code, it is that provision which should be held applicable. This is because in the Central rule 106, there is no such provision. If that be so it is not because of repugnancy between the Central code and the Madras amendment On the contrary, it is a clear case of unoccupied field being occupied by the State Legislature. As to the reason for this specific provision it can be gathered by a reading of the decision in Samba murthi v. Sabatho1. That ruling clearly shows that the inherent powers cannot be invoked. Therefore, notwithstanding the fact that section 5 of the Limitation act says that the provisions of this section cannot be made applicable to applications arising under Order 21, Civil Procedure Code, this being strictly an application not under Order 21, Civil Procedure Code, but only to set aside an ex parte dismissal during execution proceedings, it is Order 9 that would apply.

(3.) THERE is not even a formal application in this case by the revision petitioner for the condonation of the delay. That of course, cannot be put against the petitioner much. Even on merits, what I find is that as far as the father is concerned the proceedings had come to a close long ago. It is not the son who is now seeking to agitate his rights. For all these reasons these two civil revision petitions will stand dismissed. No costs.