HABEEBA BABU Vs. B CHOWDESH

JUDGEMENT

(1.) THE Revision petitioner herein is the defendant in O. S. No. 159 of 1999 on the file of the Court of the Junior Civil Judge, Hindupur. The suit was filed by the respondent herein for specific performance of agreement of Sale executed by the defendant in respect of the suit schedule property. The defendant remained ex parte and the suit was decreed on 3. 7. 2003 as prayed for with costs with a direction to the defendant to execute a registered Sale Deed in favour of the plaintiff after receiving balance of sale consideration failing which granting liberty to the plaintiff to get executed and registered the same through process of the Court. Pursuant thereto, the plaintiff/decree-holder filed EP. No. 72 of 2006 for execution of the decree dated 3. 7. 2003. The defendant/judgment-debtor appeared and at her request the E. P. was adjourned to 29. 03. 2007 for counter. However, she failed to appear on that day and therefore she was set ex parte on 29. 03. 2007. Thereafter, on 26. 12. 2007 the defendant/judgment-debtor filed an application to set aside the ex parte order dated 29. 03. 2007 along with EA. No. 47 of 2007 under Section 5 of the Limitation act to condone the delay of 246 days in filing the said application. In the affidavit filed in support of the application, it was pleaded that she was suffering from serious illness and was under treatment at Bangalore on 29. 03. 2007 and therefore she could not attend the Court and her counsel also did not represent the case since he was engaged in another Court. It was also pleaded that she came to know about the ex parte order only on 26. 12. 2007 when she met her advocate and therefore the delay which was not intentional may be condoned. The plaintiff/decree-holder filed a counter opposing the said petition. The Court below after hearing both the parties by order dated 15. 09. 2008 while relying upon a decision of this Court in TATIPALLI VAZRAMMA v. REVURI DEVAIAH AND OTHERS dismissed the petition holding that Section 5 of the limitation Act was not applicable to the execution proceedings under Order 21 of c. P. C. The said order dated 15. 09. 2008 is under challenge in this Revision petition.

(2.) I have heard the learned counsel for both the parties and perused the material on record. The learned counsel for the petitioner vehemently contended that in view of sub-rule (4) of Rule 106 of Order 21 of C. P. C. the provisions of Section 5 of the Limitation Act, 1963, are applicable to the execution proceedings and the court below committed an error in dismissing the application as not maintainable. Rule 106 of Order 21 of C. P. C. was amended by the High Court of Andhra Pradesh in exercise of the power conferred under Section 122 of C. P. C. with the previous approval of the State Government. By virtue of the said amendment, sub-rule (4) was added after sub-rule (3) of Rule 106. A Notification dated 30. 11. 1992 was published to that effect in the Official Gazette. Rule 106 of order 21 of C. P. C. as it stands after the above said amendment by the High court of A. P. may be extracted hereunder: 106. Setting aside orders passed ex parte, etc.

(3.) IN this context, it is also relevant to refer to Rule 105 which runs as under : 105. Hearing of application