Smt. Rajbala vs Sh. Giri Lal @ Girwar Singh ...
2014 Latest Caselaw 5374 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+ C.M.(M) No.469/2014 & C.M.Nos.8181/2014 (Stay) & 8182/2014
  (Exemption)

%                                                     30th October, 2014

SMT. RAJBALA                                                   ......Petitioner
                          Through:       Mr.Nitin Sheel, Advocate.

                          VERSUS

SH. GIRI LAL @ GIRWAR SINGH (DECEASED) THROUGH HIS
LEGAL HEIR, SH. SANTPAL SINGH                  ...... Respondent

Through: Mr.Sanyam Saxena, Advocate for R-

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. Challenge by means of this petition under Article 227 of the

Constitution of India is to the order of the executing court dated 14.3.2014

by which the executing court allowed the application filed by the decree

holder/respondent for setting aside the order dated 09.9.2011 by which the

execution petition was dismissed in default.

2. Before me counsel for the petitioner argues that delay in filing of an

application under order XXI Rule 106 of Code of Civil Procedure, 1908

(CPC) cannot be condoned in view of Section 5 of the Limitation Act,1963

which states that delay cannot be condoned under Section 5 of the

Limitation Act with respect to provisions contained under Order XXI CPC.

3. A Division Bench of this Court in the case of Deutsche Ranco Gmbh

Vs. Mohan Murti 176 (2011) DLT 280 after considering the judgment of

the Supreme Court in the case of Damodaran Pillai & Ors. Vs. South

Indian Bank Ltd. (2005) 7 SCC 300 has held that the period of limitation of

30 days as provided under Order XXI Rule 106 CPC will come into play

only if the execution petition itself is listed for hearing and not otherwise.

4. In the present case, it is not the case of the petitioner that when the

execution petition was dismissed in default on 09.9.2011, the execution

petition itself set down for hearing. Once the execution petition itself was

not set down for hearing, a period of limitation of 30 days prescribed under

Order XXI Rule 106 CPC will not apply, and therefore really the application

for restoration would be under Section 151 CPC and not under Order XXI

Rule 106 CPC. For an application under Section 151 CPC, the period of

limitation is 3 years as per Article 137 of the Limitation Act.

5. Powers under Article 227 of the Constitution of India are

extraordinary and discretionary powers, and which powers can be exercised

only in order to prevent injustice and not to support technicalities. In my

opinion, I do not think that in cases such as the present, extraordinary and

discretionary powers under Article 227 of the Constitution of India should

be exercised.

6. Dismissed. Parties are left to bear their own costs.

VALMIKI J. MEHTA, J OCTOBER 30, 2014 KA