Madras High Court

K.M.Gopal vs Sri Moogambigai Financiers on 14 July, 2021

                                                                               C.R.P.No.3320 of 2018

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED: 14.07.2021

                                                      CORAM:

                               THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN

                                               C.R.P.No.3320 of 2018
                                             and C.M.P.No.18850 of 2018


                     K.M.Gopal                                                   ... Petitioner

                                                         Vs


                     1.Sri Moogambigai Financiers,
                       Represented by Managing Partner,
                       Parameswari, Wife of R.G.N.Palanisamy,
                       Residing at Congress House Road,
                       Pudupet, Gudiyatham, Vellore District.

                     2.S.Selvaraj                                               ... Respondents



                     Prayer: Civil Revision Petition filed under Article 227 of the Constitution

                     of India, challenging the Order and Decreetal Order dated 03.02.2018 in

                     C.M.A.No.2 of 2016 on the file of the Court of Principal District Judge,

                     Vellore, Vellore District.




                     1/11

https://www.mhc.tn.gov.in/judis/
                                                                                     C.R.P.No.3320 of 2018



                                        For Petitioner   : Mr.V.Raghavachari

                                        For Respondents : Mr.T.Dhanyakumar for R1
                                                          Mr.M.Sriram for R2

                                                         **********
                                                         ORDER

This Civil Revision Petition is filed challenging the Order and

Decreetal Order dated 03.02.2018 in C.M.A.No.2 of 2016 on the file of the

Court of Principal District Judge, Vellore, Vellore District, thereby

dismissing the Civil Miscellaneous Appeal to restore the application

challenging the auction sale.

2. The petitioner herein is the third defendant and the first respondent

herein is the plaintiff in O.S.No.160 of 1999 on the file of Sub Judge,

Gudiyattam, Vellore District. The first respondent herein filed the said suit

for recovery of money and the same was decreed on 29.01.2002. Pursuant

of the decree, the first respondent herein filed an Execution Petition in

E.P.No.75 of 2004 and the same was ordered. In pursuant to the order,

auction was conducted in respect of the immovable property on 06.09.2006.

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On 21.09.2006 the petitioner herein filed an application in E.A.No.108 of

2006 to set aside the Auction Sale. In that said application the petitioner

herein was examined and thereafter he was not present for cross

examination. Hence, the same was dismissed for default on 30.04.2014.

3. Again the petitioner herein filed an application in E.A.No.101 of

2014 seeking to condone the delay of 164 days and to set aside the order

dated 30.04.2014 in E.A.No.108 of 2006. The said application was also

dismissed and aggrieved by the same the Civil Miscellaneous Appeal was

filed before the Principal District Judge, Vellore and it was dismissed by the

impugned order. As against that, the Civil Revision Petition filed.

4. The learned counsel for the petitioner herein would submit that the

exparte Judgment is not in consonance with the Order XX Rule 4 of the

CPC. The property was auctioned for very low rate. Therefore, the

petitioner herein filed an application to set aside the auction sale.

Unfortunately, pending the application, he suffered from cancer and was

admitted in the various hospitals. Therefore, there was a delay of 164 days

in filing the application to set aside the dismissal order dated 30.04.2014.

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5. He further submitted that the petitioner herein was examined as

P.W.1 and marked Ex.P1 to Ex.P18. Even then the Court below dismissed

the condone delay application for reason the petitioner did not state

sufficient reasons of the condone delay application.

6. The learned counsel for the first respondent herein would submit

that the auction sale was conducted in respect of the immovable properties

on 06.09.2006. Challenging the same, the petitioner herein filed application

on 21.09.2006. The said application was pending till 30.04.2014 and on

that date it was dismissed for default. The petitioner herein prolonged the

proceedings for 8 years and thereafter with the delay of 164 days filed the

application to set aside the dismissal order dated 30.04.2014. The said

application was filed under Order XXI Rule 105(3) of the CPC read with

Section 151 of the CPC. The application itself is not maintainable, since

there is no provision in the CPC to condone the delay in Execution Petition

much less under Order XXI Rules 105 and 106 of the CPC.

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7. As per Order XXI Rule 105 and 106 of the CPC, the application

should be filed within 30 days. There is no question of filing the application

to condone the delay. That apart, when the reasons stated by the petitioner

herein are not sufficient to condone the delay and the Court below rightly

dismissed the application. Thereafter the sale was confirmed, delivery of

possession was ordered, the delivery also effected on 07.01.2020 and the

Execution Petition was terminated on 10.01.2020.

8. Heard Mr.V.Raghavachari, learned counsel appearing for the

petitioner herein and Mr.T.Dhanyakumar, learned counsel appearing for the

first respondent herein and Mr.M.Sriram, learned counsel appearing for the

second respondent herein.

9. The Petitioner herein is the Judgment Debtor in Execution Petition

and the suit filed by the first respondent herein for recovery of money. It

was decreed by the Judgment and Decree dated 29.01.2002 and on the

strength of the decree, the first respondent herein filed an Execution

Petition, in which, the auction sale was ordered. Accordingly, on

06.09.2006, the auction sale was conducted and the same was challenged by

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the petitioner herein in E.A.No.108 of 2006 on 21.09.2006. It was pending

for the past 8 years and the same was dismissed on 30.04.2014.

10. After completion of oral evidence when the matter was posted for

arguments, the petitioner filed the present application seeking appointment

of an Advocate Commissioner. Thereafter, the petitioner failed to appear

before the Court below and the same was dismissed for default. Therefore,

the petitioner filed an application to restore the said application with the

delay of 164 days under Order XXI Rule 105(3) of the CPC and Section 151

of the CPC.

11. A perusal of the affidavit filed in support of the present

application revealed that the petitioner herein was suffering from Carcinoma

Left Vocal Cord disease and he underwent radio therapy. He was taking

continuous treatment in the Appolo Hospital, Chennai and Dr.Agarwal's Eye

Hospital, Chennai. Therefore, he could not contact his counsel. In support

of his contentions, he marked Ex.P1 to P18.

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12. It is seen that the application challenging the auction sale was

pending from 21.09.2006 to 30.04.2014. When the application was posted

for arguments, the petitioner filed an application seeking appointment of an

Advocate Commissioner. At that juncture, the petitioner failed to proceed

with the application and as such the said application was dismissed on

30.04.2014.

13. As rightly pointed out by the learned counsel for the first

respondent, the dismissal coming under Order XXI Rule 105(2) of the CPC,

it reads as follows:

"105(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."

14. Accordingly, when the application was posted for hearing, the

petitioner herein did not appear when the case was called on and the

Executing Court dismissed the application on 30.04.2014. When the

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application was dismissed for default, as per Order XXI Rule 106 of the

CPC, the application to set aside shall be filed within 30 days from the date

of the order.

15. In this regard, the learned counsel for the first respondent relied

upon the Judgment reported in (2005) 7 SCC 300 Damodaran Pillai and

others -vs- South Indian Bank Ltd wherein it has been held as follows:

"16. An application under Section 5 of the Limitation

Act is not maintainable in a proceeding arising under Order

XXI of the Code. Application of the said provision has, thus,

expressly been excluded in a proceeding under Order XXI of

the Code. In that view of the matter, even an application

under Section 5 of the Limitation Act was not maintainable. A

fortiori for the said purpose, inherent power of the Court

cannot be invoked."

16. The Hon'ble Supreme Court of India held that an application

under Section 5 of the Limitation Act is not maintainable in a proceeding

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arising under Order XXI of the CPC. There is a statutory bar in applying

the provisions Section 5 of the Limitation Act. Therefore, the petitioner

filed an application under Order XXI Rule 105(3) of the CPC. Rule 105(3)

is not applicable to the petitioner, since the 105(3) read as follows:

"105(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 exparte and pass

such order as it thinks fit.