Case Note & Summary
The case involves a civil revision petition filed by the legal representatives of the deceased judgment-debtor (Padasaib) challenging an order of the II Additional District Munsif Court, Puducherry, dated 04.02.2025, in E.A.No.37 of 2022 in E.P.No.44 of 2002. The executing court had allowed an application to condone a delay of 573 days in filing an application to restore the execution petition, which had been dismissed for default. The revision petitioners, represented by Mr.T.K.Saravanan, argued that the executing court lacked the power to invoke Section 5 of the Limitation Act, 1963, as the application was filed beyond the 30-day period prescribed under Order XXI Rule 106(3) of the Code of Civil Procedure, 1908 (CPC). They relied on the decisions of the Madras High Court in R.Rasappan v. D.Rajalakshmi (2025 SCC Online Mad 4068) and the Division Bench in N.M.Natarajan v. Deivayanai Ammal (1989 1 L.W 178), as well as the Supreme Court in Damodaran Pillai v. South Indian Bank Limited ((2005) 7 SCC 300), all holding that Section 5 of the Limitation Act is inapplicable to proceedings under Order XXI CPC. The respondents, represented by Mr.T.M.Naveen, contended that the 30-day limitation applies only when the application is filed under Order XXI Rule 106(3) to set aside an order under Order XXI Rule 105(2) for non-appearance, and not for other reasons. They referred to a circular of the Madras High Court (ROC.No.81478-A/2025/F1) which, according to them, distinguishes between dismissals for non-appearance and dismissals for other purposes. The High Court, after hearing both sides, examined the relevant provisions and the cited precedents. It noted that the order dismissing the execution petition was passed under Order XXI Rule 105(2) for non-appearance of the decree-holder, and thus the application for restoration fell squarely under Order XXI Rule 106(3), which prescribes a limitation of 30 days. The court held that Section 5 of the Limitation Act cannot be invoked to condone delay beyond this period, as the CPC provides a complete code for execution proceedings. The executing court's order condoning the delay was therefore without jurisdiction. The High Court allowed the revision petition, set aside the impugned order, and dismissed the application in E.A.No.37 of 2022. No costs were awarded.
Headnote
A) Civil Procedure Code - Execution Proceedings - Limitation - Section 5 of Limitation Act, 1963 - Order XXI Rule 106(3) CPC - The executing court allowed an application to condone a delay of 573 days in filing an application to restore an execution petition dismissed for default. The revision petitioners contended that Section 5 of the Limitation Act is not applicable to proceedings under Order XXI CPC. The High Court held that Section 5 of the Limitation Act is inapplicable to Order XXI CPC, and the limitation of 30 days under Order XXI Rule 106(3) cannot be extended by invoking Section 5. The order condoning delay was set aside. (Paras 1-14) B) Civil Procedure Code - Execution Proceedings - Ex-Parte Order - Order XXI Rule 105(2) and Rule 106(3) CPC - The respondents argued that the circular of the Madras High Court distinguishes between dismissal for non-appearance and dismissal for other reasons. However, the court found that the order in question was passed under Order XXI Rule 105(2) for non-appearance, and thus the 30-day limitation under Rule 106(3) applies strictly. The executing court's reliance on Section 5 was erroneous. (Paras 5-14)
Issue of Consideration
Whether the executing court has the power to condone delay under Section 5 of the Limitation Act, 1963 for an application to set aside an ex-parte order under Order XXI Rule 106(3) of the Code of Civil Procedure, 1908, when the application is filed beyond the prescribed period of 30 days.
Final Decision
The High Court allowed the civil revision petition, set aside the order dated 04.02.2025 in E.A.No.37 of 2022 in E.P.No.44 of 2002 passed by the II Additional District Munsif Court, Puducherry, and dismissed the application in E.A.No.37 of 2022. No costs. Consequently, the connected miscellaneous petition was closed.
Law Points
- Section 5 of Limitation Act
- 1963 is inapplicable to applications under Order XXI of CPC
- Order XXI Rule 106(3) CPC provides a limitation of 30 days for setting aside ex-parte orders
- executing court cannot condone delay beyond 30 days under Section 5 of Limitation Act
