State Of U.P. vs Saifi Abdul Hasan Nimachwala
2015 Latest Caselaw 5355 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 58
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 7036 of 2015
 

 
Petitioner :- State Of U.P.
 
Respondent :- Saifi Abdul Hasan Nimachwala
 
Counsel for Petitioner :- Syed Mohd. Iqbal Hasan
 
Counsel for Respondent :- Fahd Iqbal,Jahangir Jamshed Munir 
 
					
 

 
Hon'ble Suneet Kumar,J.

Heard learned counsel for the parties.

The applicant, judgement-debtor has approached this court assailing the order dated 24 March 2015, passed by Additional District Judge (Court no.2), Rampur in Civil Revision No. 35 of 2014 (State of U.P through Collector, Rampur Vs. Saifi Abdul Hasan Neemachwala), arising from an order of Civil Judge (Senior Division), Rampur dated 21 May 2014, passed in Execution Case No. 4 of 1994 (Saifi Abdul Hasan Vs. State of U.P).

The respondent-decree holder instituted a suit being Original Suit No. 184 of 1989 for renewal of expired lease for a period of thirty years, the suit was decreed on 18 November 1991, whereby, lease was renewed with effect from 14 December 1978 for a further period of thirty years, aggrieved, applicant preferred an appeal before the District Judge, Rampur which was dismissed on 2 May 1992, thereafter, second appeal filed before this court was also rejected. Consequently, the respondent instituted an Execution Case being Case No. 4 of 1994 before the Civil Judge (Senior Division), at Rampur, the execution proceedings was dismissed in default on 21 July 1995, restoration application under Section 151 along with an application under Section 5 of Limitation Act was preferred on 12 April 2004 after a lapse of 9 years and six months which was allowed by the learned Civil Judge (Senior Division), Rampur on 21 May 2014, aggrieved, the applicant preferred a revision which was dismissed.

The aforementioned orders are being assailed in the present petition.

The submission of the learned counsel for the applicant is that the delay could not have been condoned exercising inherent power, whereas, under Rule 106 of Order XXI the period prescribed is thirty days which could not have been extended in exercise of inherent power.

In rebuttal Sri J.J.Munir, learned counsel appearing for the respondents would submit that Rule 105 is applicable only when the execution application is fixed for hearing or the learned court would have adjourned it for hearing. It is admitted between the parties and from the reflection of the impugned orders and order sheet, that the proceedings was not at the stage of hearing but an order was passed directing the respondent to file copy of the lease, which was not filed, thereafter, a further date was fixed, finally the execution application was dismissed in default.

The rival submission call for consideration.

Learned counsel for the applicant heavily placed reliance on Damodaran Pillai and others Vs. South Indian Bank Ltd1, wherein, it has been held that the period defined under Order XXI Rule 106 cannot be extended while exercising inherent power of the court. This proposition laid down in the aforementioned judgement is not being disputed by the learned counsel for the respondent but would submit that it is not applicable in the facts of the present case. In para 3 of the said judgement, the Apex court noted that " it is not in dispute that the said Execution Petition had been set down hearing" and thereafter again in para 8 it has been noted that "it is not in dispute that the execution petition was dismissed in terms of the provisions of Rule 105 of Order XXI of the Code of Civil Procedure. Sub-rule (1) of the said Rule provides for fixing a day for hearing of the application, whereas sub rule (2) thereof envisages that if on the day so fixed or on any other day to which the hearing may be adjourned, the applicant does not appear when the case is called on for hearing, the Court may make an order that the application be dismissed. Sub Rule (3) of the said Rule postulates hearing of an application ex-parte in a case where the applicant appears and the opposite party to whom the notice has been issued by the court does not. Sub-rule (1) of Rule 106 of Order XXI of the civil Procedure Code provides for restoration of the application for default or setting aside of the order passed under sub rules (2) and (3) of Rule 105 of Order XXI".

In para 14 of the said judgement it has been noted that " the civil court in absence of any express power cannot condone the delay. For the purpose of condonation of delay in absence of applicability of the provisions of Section 5 of the Limitation Act, the court cannot invoke its inherent power". In the facts of the present case admittedly, the execution proceedings was not fixed for hearing, therefore, Rule 106 of Order XXI would not be applicable and in absence of any provision to the contrary, civil court can exercise inherent power under Section 151 CPC.

Learned counsel appearing for the respondents referred to a number of decisions of the Apex Court, as well as, High Courts which is being discussed herein under.

In Khoobchand Jain Vs. Kashi Prasad2, it has been held that when the execution proceedings was dismissed for default which was not the date fixed for hearing within the meaning of Rule 105, therefore, provision of Rule 106 are not attracted, the dismissal of the execution application in default of appearance is referable to inherent powers of the Court.

The High Court of Gauhati in Deo Narayan Goala Vs. Jagadish Pandit3, taking similar view held that there is no express provision in the Code of Civil Procedure dealing with the situation where the execution proceedings is dismissed for non prosecution when it was not fixed for hearing. The court held that inherent power of Court could have been invoked to set aside the order in exercise of power under Section 151 C .P.C. which otherwise cannot be interfered.

The High Court of Orissa in Dambarudhar Mohanta Vs. Mangulu Charan Naik4, held "that in absence of any other specific provision, the provision of law in Section 151, CPC is invokable to consider the prayer for restoration where provision of Order XXI Rule 106 is not applicable".

This Court in Arjun Prasad Vs. Smt. Ameer Jahan Begum5, upon considering a number of decisions of various High Courts, as well as, the Apex Court, including, Damodaran Pillai (supra) was of the view that the provision of Rule 106 would be applicable when the proceedings is dismissed at the stage of hearing or on the date adjourned for hearing in terms of Rule 105, but in the event of the petition being dismissed when it was fixed for order, then the provision of Rule 106 would not apply, the Court in such circumstances may exercise inherent power upon an application under Section 151 C.P.C.

The consistent view therefore, is that Rule 106 would apply only when the execution proceedings is fixed for hearing in terms of Rule 105 of Order XXI and in the event of the petition being dismissed prior to the stage of hearing, in absence of a specific provision, the court is competent to restore the petition in exercise of its inherent power.

In this view of the matter, I find no illegality, infirmity or jurisdictional error in the impugned orders.

The petition is accordingly dismissed.

No order as to costs.

Date: 11.12.2015

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