KRISHNAIAH Vs. PRASADA RAO

JUDGEMENT

(1.) THE following background of this case is not in dispute. Petitioner herein suffered a money decree for Rs. 40,495. 08 with subsequent interest at stipulated rate in O. S. No. 614 of 1996 dated 26. 4. 1999 on the file of the Court of I additional Junior Civil Judge, Nellore. He did not satisfy the decree. He unsuccessfully preferred appeal to the Court of I Additional District Judge, nellore, which was dismissed on 30. 1. 2003. Thereafter, respondent filed execution petition being E. P. No. 446 of 2003 under Order XXI Rules 37 and 38 of code of Civil Procedure, 1908 (CPC) for arrest of defaulting Judgment Debtor (J. Dr ). It appears that executing Court passed ex parte order on 02. 5. 2006 ordering his arrest. He then filed interlocutory application under Order XXI rule 106 (3) of CPC, to set aside ex parte order dated 02. 5. 2006 contending that he has no means to satisfy the decree and that his arrest cannot be ordered. He also filed another interlocutory application (unnumbered) to condone delay of 26 days in filing the application to set aside ex parte order. Learned executing judge relied on decision of Supreme Court in Damodaran Pillai v South Indian bank Limited, AIR 2005 SC 3460 and dismissed application for condonation of delay. In the process, executing Court did not consider two decisions of this Court in State bank of India v Muffar Ali Khan, 2004 6 ALT 17 and Sale Ranga Swamy v Sub Collector, Kurnool, 2004 2 ALT 764, wherein it was held that Section 5 of Limitation Act, 1963 (hereafter, limitation Act) would also be applicable to an application filed under Order XXI rule 106 of CPC. Aggrieved by the order of executing Court dated 17. 10. 2006, petitioner/j. Dr filed this civil revision petition. The matter initially came up before one of us (P. S. Narayana,j ). By order dated 12. 7. 2007, our learned Brother referred matter to a Division Bench observing as follows.

(2.) IN the light of the decision of the Apex Court, the question to be decided is whether the decisions of two learned Single Judges of this Court and the views expressed in the said decisions are to be held to be good law in the light of certain distinguishing features which had been pointed out by the learned counsel for the revision petitioner or the ratio of the Apex Court to be followed irrespective of the hardship, may be the question of general importance, since such applications would be coming up before different Courts in State of Andhra Pradesh almost every day. In view of the same, without expressing any further opinion on this aspect, especially in the light of the subsequent Amending Legislations to the Code of Civil Procedure in the year 1999 and 2002 as well, this Court is inclined to refer the matter to be decided by an appropriate Division Bench.

(3.) THE matter then went before Division Bench comprising their Lordships B. Prakash rao and G. Bhavani Prasad,jj. By order dated 29. 8. 2008, they opined that authoritative pronouncement is required by a Full Bench and observed as follows. The controversy involves consideration of various legal aspects and incidental principles, which arise in the applicability of the said provisions, vis--vis, the provisions of the amending Act of the Code of Civil Procedure and the distinguishing facts and circumstances existing in both the cases, i. e. , in damodaran Pillai and others v South Indian Bank Limited and as well in the case of Division Bench of this Court and also the correctness of the view taken by the Division Bench.