@JUDGMENTTAG-ORDER
N.S. Veerabhadraiah, J.@mdashThis revision is by the judgment-debtor being aggrieved of the order passed in Misc. Case No. 40/2000 by the learned Civil Judge (Sr. Dn.) Hubli, dated 14.6.2001 restoring the execution case No. 229/88.
2. The brief facts of the case are as follows :
The United Western Bank Limited, obtained a decree against the judgment-debtor for Rs. 1.52.864/- in O.S. No. 13/1982. The said decree became final between the parties. The Decree-holders took out execution for recovery of the amount in Ex. Case No. 229/88. The judgment-debtor dragged on the proceedings commencing from 1988, After all the formalities, the execution proceedings stood posted to 5,8.2000 for filing of the verified statement. On 5.8.2000, the execution petition came to be dismissed for non-compliance of Order 21, Rule 66(3), CPC. The decree-holder Bank immediately filed a Miscellaneous Petition under Order 21 Rule 106 read with Section 151, CPC for restoration of Ex. Case No. 229/88. The petition came to be registered as Misc. No. 40/2000. The learned Judge of the Executing Court by its order dated 14.6.2001 allowed Misc. No. 40/2000 by restoring the execution proceedings in Ex. Case No. 229/88. Insofar as restoring of the execution case is concerned, the judgment-debtors have come up with this revision.
3. Learned Counsel Mr. M.H. Datar for the petitioners contended that when once the Execution Case No. 229/88 is dismissed, the restoration is bad in law, as the same is barred under Article 136 of the Limitation Act. Secondly contended that there is no finding by the learned Judge insofar as valid service of notice on respondents 1 and 2 is concerned. When there is no finding regarding valid service of notice on them, the restoration is also bad. Thirdly contended that the petition under Order 21 Rule 106, CPC is not maintainable as Rule 105 CPC provides only for hearing of applications. The restoration of the execution case amounts to fresh proceedings. He has further contended that on the date of hearing, the execution case was posted for filing of verified statement and as the same was not complied with, the execution case was dismissed. Therefore, the application filed under Order 21 Rule 106, CPC is not at all maintainable. The order sheet dated 16.6.2000 in the execution case shows ''objections were not filed for sale notice''. Therefore, the case was adjourned to 1.7.2000 for filing of the verified statement. It is on 5.8.2000, the execution case was dismissed as the decree-holders and their Advocate were absent. Therefore, the restoration of the execution case by invoking the provisions of Section 21 Rule 106, CPC is not sustainable. Accordingly, prayed to allow the revision by setting aside the order passed in Misc. No. 40/2000. In support of his contentions, the learned Counsel relied on the decisions reported in
4. Learned Counsel Mr. Seetharama Rao, for the decree-holder (1st respondent-Bank) contended that the Court notice was tendered in the normal course of service to respondents 1 and 2 in Misc. 40/2000. That Order 5 Rule 10, CPC as well as Order 5 Rule 19(A)(2) of CPC makes it clear that the notice deemed to have been duly served and returned with an endorsement ''not claimed'' is nothing but a refusal. Therefore, it is a deemed service. Even otherwise, it is clear from the order sheet that there is a valid service of Court notice on the present petitioner No. 2 Smt. Neelaganga Tukaram Pol, who was respondent No. 3 in Misc. No. 40/2000. The service of notice on her is a valid service and it is well within the knowledge of others who did not choose to appear and contest the proceedings in Misc. No. 40/2000. He has further contended that an application under Order 21 Rule 106 r/w Section 151, CPC is very well maintainable. That Rule 105 of CPC provides for hearing of an application, that is, for further proceedings of the matter. It is in this context, the learned Counsel contended that the application under Order 21 Rule 106, CPC is maintainable and that it need not necessarily be a matter pending for hearing any application. He further contended that in Misc. No. 40/2000 at paras 5 and 6 the reasons have been specifically stated as to under what circumstances they could not able to ''enter the Court premises and file the verified statement''. The said fact is not disputed. It is clear that the decree-holder has shown sufficient cause for restoration of the petition. Therefore, such an order is revisable. He has nextly contended that the restoration of the execution case does not amount to any fresh application. Accordingly, prayed to dismiss the revision.
5. Learned Counsel Mr. R.L. Patil for respondent No. 3 (auction purchaser) contended that the judgment-debtors are dishonest evaders of payment having suffered a decree. That the address mentioned in the cause title in the Misc. Petition is not disputed. The notice sent by the Court is returned with an endorsement ''unclaimed'' which amounts to refusal of notice within the meaning of Section 27 of the General Clauses Act, 1897. He has nextly contended that the application under Order 21 Rule 106, CPC is very well maintainable in view of the amendment to the CPC by Act No. 104 of 1976. When the matter is posted for hearing, it is deemed to be that it is for further proceedings. Assuming for a while that the petition is not maintainable under Order 21 Rule 106, CPC, the petition is very well maintainable u/s 151, CPC for restoration of the petition, by virtue of the inherent powers conferred on the Court. It is lastly contended that the decree holders have not filed any separate Execution Petition. Therefore, Article 136 is not attracted. Accordingly, justified the impugned order and prayed to dismiss the revision.
6. In the light of the submissions, the points for consideration that arise are :
1. Whether the petitioners 1 and 2 were not served with Court notices in Misc. No. 40/2000 and thereby the order dated 14.6.2000 is vitiated and is liable to be set aside?
2. Whether an application under Order 21 Rule 106 r/w Section 151, CPC is not maintainable for restoration of the execution proceedings?
3. Whether the application filed under Order 21 Rule 106 r/w Section 151, CPC dated 4.9.2000 amounts to a fresh execution and is thereby barred under Article 136 of the Limitation Act?
Point No. 1 :
7. In the light of the contentions of the learned Counsel Mr. M.H. Datar, it has to be examined whether there was no service of notice on petitioners 1 and 2 (who are respondents 1 and 2 in Misc. No. 40/2000) and thereby the restoration of Execution No. 229/88 is bad.
In the present case, the decree holder filed a petition under Order 21 Rule 106 r/w Section 151, CPC for restoration of Execution No. 229/88 dismissed on 5.8.2000 for non-filing of the verified statement. The said petition came to be registered as Misc. No. 40/2000. When the notices were sent by Registered Post, the same was duly served on Smt. Neelaganga Tukaram Pol, who is respondent No. 3 in Misc. No. 40/2000, where as the notices on Tukaram Bhivaji Pol and Smt. Vithabai G. Ghodake returned with an endorsement "not claimed". On a perusal of the postal endorsement insofar as petitioners in the present case are concerned, it was returned with an endorsement "not claimed" whereas the notice sent by RPAD had been duly served on the petitioner Smt. Neelaganga Tukaram Pol, who is respondent No. 3 in Misc. No. 40/2000. That apart, in the order sheet in Misc. No. 40/2000 dated 8.1.2001 as well as 19.2.2001 it clearly reveals that respondent No. 3 has been duly served whereas the notices sent to respondents 1 and 2 were returned as "not claimed". The learned Counsel Mr. Datar brings to the notice of the Court the decision in the case of
"In the instant case, neither the Trial Court nor the High Court gave any definite finding as to the service of notice on the appellant. The mere fact that when the appellant made an application for setting aside the ex parte decree, he happened to give his permanent residential address which incidentally happened to be the address to which notice of substitution was sent by the Court, will not ipso facto lead to the conclusion that the notice of substitution was, in fact, served on the appellant. No inquiry or attempt was made by the Trial Court to find out the truth of the fact whether the notice of substitution was, in fact, served on the appellant. Even the plaintiff in its affidavit filed in opposition to the appellant''s application did not deny the fact that the appellant was working in Gonda District at the relevant time."
On the basis of the above observation, the learned Counsel contended that there is no finding by the Court regarding service of notice on respondents 1 and 2. Therefore, the very order restoring the petition is liable to be set aside. In the case on hand, there is an endorsement by the postal authorities as "not claimed". It is further relevant to note that respondent No. 3 Smt. Neelaganga Tukaram Pol, who is residing in the same address has been duly served by RPAD and the same is evidenced from the acknowledgement which is available in the Court file. The address of respondent Nos. 1 and 2Tukaram Bhivaji Pol and Vithabai G. Ghodake is also the same as that of respondent No. 3. But the same has been returned with an endorsement as ''not claimed''. It is not the case of the petitioners that they are not residing in the said address. Therefore, it has to be held that the notices were deemed to have been duly served. Order 5, Rule 10 of CPC indicates ''Mode of service'', whereas Order 5, Rule 19-A(2) of CPC provides for simultaneous issue of summons for service by post, in addition to personal service which reads thus :
"Order 5, Rule 19A(2), CPC :
(2) When an acknowledgment purporting to be signed by the defendant or his agent is received by the Court or the postal article containing the summons is received back by the Court with an endorsement purporting to have been made by a postal employee to the effect that the defendant or his agent had refused to take delivery of the postal article containing the summons, when tendered to him, the Court issuing the summons shall declare that the summons had been duly served on the defendant."
It makes clear that the party when refused to take delivery of the postal articles containing the summons etc., it is deemed to be that the notice is duly served. Accordingly, posted for inquiry. That apart, when the proceedings are well within the knowledge of the respondent No. 3 Smt. Neelaganga Tukaram Pol, having been duly served with Court notice, did not choose to participate in the proceedings, it has to be held that it is a deemed service. Therefore, the contention of the learned Counsel Mr. Datar that there was no service of notice on petitioners 1 and 2 is without any force.
Points 2 and 3:
8. It is vehemently contended that an application under Order 21, Rule 106 read with Section 151, CPC is not maintainable as the execution proceedings was not posted for hearing of any such application. Therefore, the restoration order passed in Misc, No. 40/2000 dated 14.6.2003 is erroneous. Even otherwise, the restoration of the execution is nothing but fresh proceedings. Therefore, the same is barred by Article 136 of the Limitation Act.
9. It is not in dispute that the suit of the Bank was decreed against the judgment-debtor and they have filed Execution No. 229/88 for initiation for proceedings for realization of the amount and also obtained an order of attachment and for sale of the properties of the judgment-debtor. It is clear that the Execution Petition was filed in the year 1988, But in spite of best efforts, the decree-holder could not able to realize the amount as per the decree. The order sheet dated 23.5.2000, 16.6.2000, 1.7.2000/17.7.2000 and 5.8.2000 is Execution No. 229/88 reads thus:
"23.5.2000:
J.D2 is absent, J.D. 3 is present and prayed time. Heard. Granted. Call on 16/6.
16.6.2000:
J.Dr No. 3 is absent. No objection is filed to the sale notice. Hence D.Hr. is directed to file verified statement. Call on 1/7.
1.7.2000/17.7.2000;
For verified statement call on 5/8.
5.8.2000:
D.Hr and their Advocate are called out and found absent. Perused the papers, J.Drs have not filed objections to sale notice. Sale warrant has to be issued along with sale proclamation for the sale of the attached property. But before that D.Hr has to file verified statement as contended under Order 21 Rule 66(3), CPC. But they have not filed, though asked to file. Hence, the E.P. is dismissed."
10. It is clear from the order sheet that as on 1.7.2000, the case was adjourned for filing of the verified statement. But on 5.8.2000, the decree-holder and their Advocate remained absent. Therefore, the Execution Petition was dismissed for non-compliance of Order 21 Rule 66(3) of CPC. It is immediately thereafter, the decree-holder filed Misc. No. 40/2000 under Order 21 Rule 106(1) r/w Section 151, CPC. The reasons stated at para-6 in the Misc. Petition reads as follows:
"6. Due to the agitation for the setting up of the Bench of the Karnataka High Court in North Karnataka, the Manager of the petitioner-Bank was forceable and under threat prevented from entering the Court premises and, as such, the Manager of the petitioner-Bank due to threat to life and circumstances beyond his control could not enter the Court premises and the Court Hall and to note the stage and the dates on which the Execution Case No. 229/1988 was fixed and hence, could not ascertain the date of posting. The petitioner-decree holder Bank came to know after 7.8.2000 on and after which date it could enter the Court and ascertain the details of the proceedings. In the meanwhile, on 5.8.2000, the Hon''ble Court was pleased to dismiss the Execution Petition No. 229/1988 for default due to the non-furnishing of the requirements ordered to be furnished as contemplated under Order 21 Rule 66(3) of CPC."
It is with these reasons, prayed to restore the Execution Petition No. 229/1988.
11. Learned Counsel Mr. M.H. Datar contended that the dismissal of the Execution Petition is a financial judicial order. Therefore, any restoration under Order 21 Rule 106 read with Section 151, CPC is erroneous as the same is barred by limitation under Article 136 of the Limitation Act.
12. Order 21, Rule 105, CPC reads thus:
"Hearing of application.--(1) The Court, before which an application under any of the foregoing rules of this order is pending, may fix a date 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) When 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."
13. That Order 21 Rule 105(1), CPC provides to fix the date of hearing of such an application. When the date of hearing is fixed and the applicant does not appear, it enables the Court to pass appropriate orders for dismissal of such an application under Order 21 Rule 105(2), CPC. In case, where the opposite party remain absent, the Court can proceed to pass such orders ex parte.
14. Order 21 Rule 106, CPC reads thus:
"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 further hearing of the application.
(3) No order shall be made on an application under Sub-rule (1) unless notice of the application has been served on the other party.
(4) An application under Sub-rule (1) shall be made within thirty days from the date of this 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."
Where the Court dismisses an application under Order 21 Rule 105(2), CPC, it enables the applicant to file an application under Order 21 Rule 106, CPC for restoration of the petition only after due notice to the other side and such an application has to be made within a period of 30 days. In the present case, Execution No. 229/88 stood posted for filing of the verified statement. It is on account of the unavoidable circumstances as is stated in the affidavit by the applicant, he could not file the verified statement. Therefore, Misc. No. 40/2000 came to be filed for restoration under Order 21 Rule 106, CPC within a period of 30 days.
15. In the case of
"18. In my opinion, the date on which the execution application was dismissed for default of appearance of the decree-holders, namely, 21.8.1979 was not a date fixed for hearing within the meaning of Rule 105. It was a date awaiting report as to execution of the warrant which was supposed to be issued on submission of a list of movable property by the decree-holders within three days of the earlier order dated 21.7.1979. Consequently, the dismissal of execution application on 21.8.1979 was not under Rule 105(2) of Order 21 of the Civil P.C. and, therefore, the provisions of Rule 106 are not attracted. The dismissal of the execution application in default of appearance on 21.8.1979 is referable to inherent powers of the Court.
20. Since the dismissal of the execution application on 21.8.1979 was under inherent powers, the application for its restoration will be by invoking the inherent powers of the Court and in that event, no time limit is prescribed for invoking the inherent powers of the Court."
In the case supra, it is laid down that the dismissal of the Execution Petition does not fall under Order 21 Rule 105, CPC. It is in that view of the matter held that an Execution Petition can be restored by invoking the inherent powers u/s 151, CPC. It is relevant to note that the definition of the word ''hearing'' has not come up for consideration.
16. In the Interpretation of Statutes, Eighth Edition by N.S. Bindra, at Page 985, under the Chapter "Select Words and Phrases", the word ''hearing'' is defined as under:
"The word ''hearing'' includes the stage of the delivery of the judgment itself.
Applying the same meaning for ''hearing'', even if the case is posted for filing of the verified statement, it has to be construed that the case has been posted for hearing for all purposes. It is in this real sense of the meaning of ''hearing'' which has to be taken into consideration. Therefore, the dismissal of the application comes within the meaning of Rule 105(2) of Order 21, CPC. It is no doubt true that the Court can exercise jurisdiction u/s 151, CPC. But that does not mean the dismissal is not one under Order 21 Rule 105(2), CPC. Therefore, the contention of the learned Counsel for the petitioner that for purposes of restoration Order 21 Rule 106, CPC is not applicable is without any merits.
17. In the Miscellaneous Petition at para 6, it has been specifically stated that there was agitation for setting up of a Bench of the Karnataka High Court. The said fact is not disputed.
18. It is also open for the Court to take judicial note of the fact of the paper publications produced by the respondents to prove the fact that the Advocates and the litigants were not permitted to enter the Court. Therefore, though the case stood posted for filing of the verified statement, the decree-holder could not able to enter the Court premises on account of the agitation and boycott of Courts. Under such circumstances, it has to be held that the dismissal of the execution petition falls under Order 21 Sub-rule (2) of Rule 105 of CPC. Therefore, in my opinion that Rule 106 of the CPC is attracted and can very well maintain the petition under Order 21 Rule 106, CPC.
19. Even if it is construed that an application under Order 21 Rule 106, CPC is not maintainable, then it is open for the Court to exercise inherent powers u/s 151, CPC, which is properly exercised by the Executing Court. Therefore, the order of restoration of the execution proceedings does not suffer from any infirmities as such. When once the; Execution Petition is restored under Order 21 Rule 106, CPC or u/s 151, CPC as the case may be, considering the question of limitation does not arise.
20. The next submission of the learned Counsel Mr. Datar is that the very restoration of the execution petition amounts to a fresh execution and is barred by Article 136 of the Limitation Act.
21. Article 136 of the Limitation Act reads thus :
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Description of Suit |
Period of Limitation |
Time from which Period begins to run | |
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136. For the execution of any decree (other than a decree granting a mandatory injunction) or order of any Civil Court. |
Twelve years |
When the decree or order becomes enforceable or where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, when default in making the payment or delivery in respect of which execution is sought, takes place. | |
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Provided that an application for the enforcement or execution of a decree granting a perpetual injunction shall not be subject to any period of limitation. | |||
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22. So also, Article 182 of the Limitation Act reads thus:
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Description of Suit |
Period of Limitation |
Time from which Period begins to run |
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182. For the execution of a decree or order of any Civil Court not provided for by Article 183 or by Section 48 of the Code of Civil Procedure, 1908 (V of 1908) |
Three years, or where a certified copy of the decree or order has been registered, six years. |
1. The date of the decree or order, or, 2. (where there has been an appeal) the date of the final decree or order of the Appellate Court, or the withdrawal of the appeal, or 3. (where there has been a review of judgment) the date of the decision passed on the review, or 4. (where the decree has been amended) the date of amendment, or 5. (where the application next hereinafter mentioned has been made) the date of the final order passed on an application made in accordance with law to the proper Court for execution or to take some step in aid of execution of the decree or order, or 6. (in respect of any amount recovered by execution of the decree or order, which the decree-holder has been directed to refund by a decree passed in a suit for such refund) the date of such last mentioned decree or, in the case of an appeal therefrom, the date of the final decree of the Appellate Court, or of the withdrawal of the appeal, or 7. (Where the application is to enforce any payment which the decree or order directs to be made at a certain date) such date. |
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23. Under the old enactment, the period of limitation for executing a decree was 3 years. After the enactment of the Limitation Act of 1963, the period of limitation to execute a decree is 12 years. In the case on hand, the Execution Petition No. 229/88 is filed within the period of 12 years. The decision relied upon by the learned Counsel Mr. Datar'' in Selvapanthula Seshagiri Rao and Anr. v. Rebala Subbarami Reddy and Ors. (supra) is one which deals with Article 182 of the old enactment and its application. So also in the case of Nataraja Pillai v. U. Narayanaswamy Iyer (supra) which is also under the old enactment dealing with Article 182(5). The other decisions cited in respect of Section 48 of the CPC came to be repealed by the Limitation Act, 1963 with effect from 1.1.1964. Therefore, they have no application to the facts of this case. In that view of the matter, the contention that the restoration of the execution petition amounts to afresh execution petition cannot be accepted. The order of the Executing Court in restoring the petition is well within the four corners of law.
24. For the foregoing reasons, I do not find any merit in this revision. Accordingly, the revision is dismissed.
The parties shall bear their own costs.
