ARJUN PRASAD Vs. SAMEER JAHAN BEGUM

JUDGEMENT

(1.) JANARDAN Sahai, J. An application for execution of the decree was filed by the respondent Smt. Ameer Jahan Begum. It appears that 23-5-2003 was fixed in the execution case. It is common ground between the Counsel for the parties that the date was fixed for summoning the file of the Suit. That is also the finding of the Court below which has observed that earlier dates were also fixed for that purpose but the record had not been received and the execution was again posted on 23-5-2003 for the production of the record. On that date the executing Court passed an order dismissing the execution case in default. An application for restoration described as being under Order 21 Rule 106, CPC was filed by the respondent. The application was not filed within the period of 30 days time limit provided under Order 21, Rule 106 (3), CPC but was filed after about three months with an application to condone the delay. The application was allowed by the executing Court by its order dated 16-5-2005. Against that order a revision was filed which has been dismissed by order dated 24-4-2006. Both these orders have been challenged in this writ petition.

(2.) SRI A. K. Roy Counsel for the petitioner submitted that provisions of Section 5 of the Indian Limitation Act are not applicable to execution proceedings and therefore, the Courts below have committed an error in allowing the respondent's application under Order 21, Rule 106.

(3.) IN Khoobchand Jain & Anr. v. Kashi Prasad & Ors. , AIR 1986 MP 66, the executing Court had ordered issuance of a warrant of attachment of movable property on furnishing by the decree-holder of a list of movable properties but the decree- holders failed to submit the list and the Court adjourned the case to another date awaiting the execution of the warrant and on the adjourned date neither the decree- holders nor their Counsel appeared when the case was called out and the execution case was dismissed. It was held by the Madhya Pradesh High Court that the date was not a date for hearing within the meaning of Order XXI, Rule 105, CPC and the dismissal of the execution application, therefore, did not fall under Rule 105 (2), and consequently the provisions of Rule 106 were not attracted. The said case was considered by the Apex Court in Damodaran Pillai & Ors. v. South INdian Bank Ltd. , 2006 (2) JCLR 258 (SC) : 2005 (7) SCC 300, and was distinguished but not overruled. It was however held by the Apex Court that Section 5 of the Limitation Act cannot be invoked for condoning delay where an order has been passed dismissing an application under Order XXI, Rule 105, CPC. IN Radhakrishnan v. State of Kerala, W. P. (C) Nos. 5927 and 28645 of 2005, decided on 24-11-2005, the Kerala High Court also agreed with the view taken in Khoobchand's case. IN the Kerala case which has also been relied upon by the Court below the Execution Petition was ordered to be put up with the records on the date fixed. It was held that the dismissal of the Execution Petition in default was not under Order XXI, Rule 105, CPC but under inherent powers and a restoration application was maintainable under Section 151, CPC. This decision of the Kerala High Court with which I am in agreement applies to the facts of the present case.