Delhi High Court

M/S Formosa Plastics ... vs Ashok K. Chauhan & Ors. on 2 August, 2011

Author: A. K. Pathak

              IN THE HIGH COURT OF DELHI: NEW DELHI

+              E.A. No. 438/2011 (under Section 151 CPC) and E.A.
               No. 439/2011 (under Section 5 of the Limitation
               Act) in Execution Petition No. 38/1998.
%              Judgment decided on: 2nd August, 2011

M/s FORMOSA PLASTICS CORPORATION,               ......Decree Holder
U.S.A.

                         Through:   Mr. Deepak Biswas, Adv.

                         Versus

ASHOK K. CHAUHAN & ORS.                        ....Judgment Debtors

                         Through:   Mr. Rajiv Nayar, Sr. Adv. with
                                    Mr. Vinay Garg, Adv. for J.D. No. 1.
                                    Mr. A.P. Singh and Mr. Rajan
                                    Chawla, Advs. for J.D. Nos. 2 and 3.
                                    Mr. Vikas Singh, Sr. Advocate with
                                    Mr. Rajesh Yadav, Adv. for J.D. No.
                                    4.

Coram:
HON'BLE MR. JUSTICE A.K. PATHAK

       1. Whether the Reporters of local papers            No
          may be allowed to see the judgment?

       2. To be referred to Reporter or not?               No

       3. Whether the judgment should be                   No
          reported in the Digest?




A.K. PATHAK, J. (Oral)

1. Execution Petition was dismissed in default on 31st March,

2011 since decree holder remained unrepresented on that day.

Decree holder has filed E.A. No. 438/2011 under Section 151 of the

Code of Civil Procedure, 1908 (CPC) for restoration of the execution

petition. By E.A. No. 439/2011 filed under Section 5 of the

Limitation Act read with Section 151 CPC, petitioner has prayed

that the delay of 112 days in filing the application for restoration be

condoned. It is alleged that on 15th December, 2010 the matter

was adjourned to 31st March, 2011, however, counsel for the decree

holder had inadvertently noted the next date of hearing as 31st

May, 2011, consequently, he could not appear on 31st March, 2011

when the matter was taken up for hearing. Only on 31st May,

2011, counsel came to know that petition had been dismissed in

default on 31st March, 2011. Thereafter, decree holder was

informed and on receiving instructions, present application had

been filed. It is further alleged that delay in filing the application

was also for the reason that the Courts were closed in the month of

June.

2. It may be noted here that the decrees are executed by

following the procedure as laid down in Order 21 of the CPC. Order

21 is a complete code in itself, providing mode and manner in

which a decree has to be executed. Rule 105 of Order 21 CPC

provides the manner in which an application under any of the rules

of Order 21 has to be dealt with and the same reads as under :-

"Order 21 Rule 105. Hearing of application

105. Hearing of application.--(1) The Court, before which an application under any of the foregoing rules of this Order is pending, may fix a day for the hearing of the application. (2) Where on the day 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. (3) Where the applicant appears and the opposite party to whom the notice has been issued by the Court does not appear, the Court

may hear the application ex parte and pass such order as it thinks fit.

Explanation.--An application referred to in sub- rule (1) includes a claim or objection made under Rule 58."

3. Sub-Rule 2 of Rule 105 of Order 21 CPC vests power in the

Court to dismiss an execution petition if the decree holder does not

appear or remains unrepresented on the date fixed. Rule 3 of Rule

105 takes care of the situation when the applicant appears and the

opposite party to whom the notice has been issued by the court

does not appear. It provides that in such an eventuality Court may

hear the applicant ex-parte and pass such order(s) as it deems fit.

Sub-Rule 1 of Rule 106 of Order 21 CPC vests power in Court to set

aside the order passed under sub-Rule 2 and sub-Rule 3 of Rule

105 of Order 21 CPC, if the applicant against whom such an order

is passed, satisfies the Court that there was sufficient cause for his

non-appearance when the application was called on for hearing.

Sub-Rule 3 of Rule 106 prescribes period of limitation for filing

such application under sub-Rule 1. Rule 106 of Order 21 CPC

reads as under :-

"106. Setting aside orders passed ex parte, etc.-- (1) The applicant, against whom an order is made under sub-rule (2) of Rule 105 or the opposite party against whom an order is passed ex parte under sub-rule (3) of that rule or under sub-rule (1) of Rule 23, may apply to the Court to set aside the order, and if he satisfies the Court that there was sufficient cause for his non-appearance when the application was called on for hearing, the Court shall set aside the order on such terms as to costs or otherwise as it thinks fit, and shall appoint a day for the further hearing of the application. (2) No order shall be made on an application under sub-rule (1) unless notice of the application has been served on the other party.

(3) An application under sub-rule (1) shall be made within thirty days from the date of the order, or where, in the case of an ex parte order, the notice was not duly served, within thirty days from the date when the applicant had knowledge of the order."

4. Sub-Rule 3 of Order 106 provides limitation for filing such

application under sub-Rule 1 of Rule 106 CPC. It is in two parts.

The first part deals with the orders passed under sub-Rule 2 of

Rule 105 CPC. The second part refers to ex-parte orders passed

under sub-Rule 3 of Rule 105 CPC. The period of limitation of 30

days has been provided in respect of order passed under sub-Rule

2 of Rule 105 CPC. This period commences from the date of

dismissal of the execution petition. In case of recalling of ex-parte

orders against the opposite party (judgment debtor), the limitation

period of 30 days has to be reckoned from the date of knowledge of

the order by the opposite party who has suffered ex-parte order.

5. In this case, execution petition was dismissed in default on

31st March, 2011 since decree holder remained unrepresented on

that date. Thus, the dismissal of execution petition in default on

31st March, 2011 falls within the ambit and scope of sub-Rule 2 of

Rule 105 of Order 21 CPC. Accordingly, the present application

under Section 151 CPC has to be treated under sub-Rule 1 of Rule

106 of Order 21 CPC. Application under Section 151 CPC would

not be maintainable in view of the specific provision governing the

field. In Damodaran Pillai & Ors. vs. South Indian Bank Ltd.

(2005) 7 SCC 300, in similar facts, Supreme Court has held that

when a power is to be exercised by a civil court under express

provision, the inherent power cannot be taken recourse to.

6. Section 5 of the Limitation Act reads as under :-

"5. Extension of prescribed period in certain cases.

Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908 ), may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation.- The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section."

7. A bare perusal of the above quoted provision makes it clear

that Section 5 of the Limitation Act would not be applicable to the

applications under any of the provisions of Order 21 CPC.

8. In Deutsche Ranco GMBH vs. Mohan Murti

MANU/DE/1971/2009, a Single Judge of this Court has taken note

of the fact that Section 5 of Limitation Act would not be applicable

to the proceeding arising under Order 21 of the CPC.

9. In Damodaran Pillai's case (supra), Supreme Court has held

that period of limitation for filing the application under sub-Rule 1

of Rule 106 CPC would commence from the date of the order under

Order 21 Rule 105 (1) and not from the date on which decree

holder acquires the knowledge of that order. In para 21 of the