Madras High Court
Manickam vs Rahamath Beevi on 17 March, 2011
Author: S.Tamilvanan
Bench: S.Tamilvanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.03.2011 CORAM: THE HONOURABLE MR.JUSTICE S.TAMILVANAN Civil Revision Petition (NPD) No.1222 of 2010 and and M.P.No. 1 of 2010 and M.P.No.1 of 2011 1. Manickam 2. Amirthavalli .. Petitioners Vs. 1. Rahamath Beevi 2. G.Fathima Beevi 3. R.Sakila Banu 4. V.Rafique Mohamed 5. Sharmila Begum 6. Raheemakan @ V.Nazeer .. Respondents (Given up) Civil Revision Petition filed under Section 115 of the Civil Procedure Code against the docket order, dated 23.02.2010 passed by the learned District Munsif, Thiruvarur, ordering demolition of superstructure and delivery of the suit property by 30.03.2010 in E.P.No.87 of 2003 in O.S.No.401 of 1981. For petitioners : Mr.V.Raghupathi For respondents : Mr.Srinath Sridevan O R D E R
Heard the learned counsel appearing for the petitioners as well as the respondents.
2. This civil revision has been preferred, challenging the order, dated 23.02.2010 made in E.P.No.87 of 2003 in O.S.No.401 of 1981 on the file of the learned District Munsif, Thiruvarur.
3. As per the impugned order, dated 23.02.2010, demolition of superstructure and delivery of possession of the suit property was ordered by the Court below by 30.03.2010, aggrieved by which, the revision is preferred by the petitioners / judgment-debtors.
4. It is an admitted fact that the suit was filed by one S.M.Vajeer Ussan against the revision petitioners herein, seeking a decree, directing the defendants therein to deliver the possession of the suit schedule property described in the plaint, marked in red colour as ALJI, after removing the construction put up by the petitioners herein and also sought further direction for appointment of an officer of the Court to demolish the superstructure and also to grant permanent injunction restraining the defendants from proceeding with further construction over the blue shaded portion of the plaint schedule property. The suit was decreed by the trial court, after the trial, however, the first appellate court allowed the appeal and the suit was dismissed. In the second appeal, this Court allowed the same, confirming the judgment and decree passed by the trial court, thus the judgment and decree of the trial court attained finality, which is not in dispute.
5. Pursuant to the decree, Execution Petition was filed by the legal representatives of the plaintiff, who are arrayed as respondents in this revision. It is an admitted fact that after the judgment and decree passed in the second appeal has become final, the decree-holder filed Execution Petition and as the counsel for the petitioners / judgment-debtors before the court below reported no instructions, the petitioners / judgment-debtors were called absent and set exparte. Subsequently, the petitioners filed an un-numbered Execution Application under Order 21 Rules 106 and 151 CPC, seeking to set aside the exparte orders, dated 17.11.2009 and 22.12.2009. It is seen that the said Execution Application filed by the petitioners herein before the Court below was returned with a query asking as to how the application was maintainable, after the expiry of limitation of 30 days. Subsequently, there was an endorsement made by the counsel for the petitioner before the trial court that a petition to condone delay was also filed along with the petition and accordingly, it was represented. It is seen that the petition to condone the delay was filed only on 23.02.2010, as per the date available in the original petition. Therefore, it is made clear that the said petition was not filed along with the petition to condone the delay of 30 days in filing petition to set aside the exparte order and further the petition to condone the delay in an application filed under Order 21 rules 106 to rules 151 is not legally maintainable.
6. Learned counsel for the petitioners drew the attention of this Court to the petition filed under Section 5 of the Limitation Act and submitted that on 23.02.2010, an endorsement was made as follows : 'Take notice', 'no objection to set aside the exparte order'. However, the petition was returned by the court below, as not maintainable. Learned counsel for the petitioners further submitted that while the Execution Application, seeking an order to set aside the exparte order and to condone the delay of 30 days was returned, delivery of possession could not be ordered by the Court below.
7. Per contra, learned counsel for the respondents / decree-holders contended that the suit was filed in the year 1982 and even after the judgment and decree, which had reached finality, the petitioners are protracting the case. As per Order 21 Rule 106 CPC, if a petition filed after the expiry of 30 days, that could not be entertained by the Executing Court. Hence, the unnumbered E.A could have been rejected by the Court below and ordered delivery of possession, however, as per the order of the Court below, it was stated as returned. In support of his contention, learned counsel for the respondents cited the decision in V.M.Salgaocar and Bros vs. Board of Trustees of Port of Mormugao and another, reported in 2005 (4) SCC 613, wherein the Hon'ble Supreme Court held as follows :
"17.Counsel for the appellant has contended that the port trust in its reply to application under Order 12 Rule 6 while admitting the claim did not raise any objection as to the plea of limitation or statutory notice. That on the passing of the decree on admission under Order 12 Rule 6 on 12.08.1987, the respondent Board was estopped from urging the point of limitation or statutory notice. The said issue would be deemed to have been waived. That statutory notice under Section 120 and issue of limitation being the rights created in favour of the Board could be waived by the Board. Since the decree on admission under Order 12 Rule 6 of the Code of Civil Procedure was passed without any reservation being made to the issuance of statutory notice or limitation, the Board is estopped from raising such a plea at this stage. It is further submitted that the issue of waiver of limitation and statutory notice was raised by the appellant before the High Court and the same has been adjudicated upon by the High Court, the objection now raised by the counsel for the respondents that waiver had not pleaded was untenable. It was submitted that the dismissal of the suit on the ground of being barred by limitation under Section 120 and for want of statutory notice under Section 120 of the Act by the High Court was clearly erroneous. "
8. It is well settled that the statue of limitation is founded on public policy that an unlimited and perpetual threat of litigation leads to disorder, confusion and also creates insecurity and uncertainty in any legal proceeding. Therefore, the legislature in its wisdom has thought it fit to balance the same, considering the public interest in providing limitation on the one hand and at the same time not to unreasonably restrict the right of a party to initiate any proceeding on the other. The Hon'ble Apex Court, while considering the fact that the Major Port Trusts Act, 1963, being a special Act, in view of the settled proposition of law, ruled that the provision of the special Act shall prevail over the general Act. Therefore, Section 29 of the Limitation Act, 1963 relates to savings and sub-section (2) of Section 29 envisages special or local laws, which can provide a period of limitation for suits as well as appeals and applications, different from the period prescribed by the schedule of the Limitation Act, where provisions contained in Sections 4 to 24 can be expressly excluded by such special or local laws. There are many special or local laws which provide for a short period of limitation for filing of appeals as well as applications and where the provisions of Section 5 are expressly excluded or curtailed, considering the special circumstances, to meet the ends of justice.
9. As per the decision in Damodaran Pillai and others vs. South Indian Bank Limited, reported in 2005 (4) CTC 534, the Hon'ble Supreme Court held as follows :
"9. Sub-rule (3) of Rule 106 provides for the period of limitation for filing such an application which reads as under:
"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."
10. The learned Executing Court allowed application of restoration filed by the Respondent herein on the ground that it acquired the knowledge about the dismissal of the Execution Petition only on 25.3.1998.
11. The learned Judge, however, while arriving at the said finding failed and/or neglected to consider the effect of sub-rule (3) of Rule 106. A bare perusal of the aforementioned rule will clearly go to show that when an application is dismissed for default in terms of Rule 105, the starting period of limitation for filing of a restoration application would be the date of the order and not the knowledge thereabout. As the applicant is represented in the proceeding through his Advocate, his knowledge of the order is presumed. The starting point of limitation being knowledge about the disposal of the execution petition would arise only in a case where an ex- parte order was passed and that too without proper notice upon the judgment debtor and not otherwise. Thus, if an order has been passed dismissing an application for default, the application for restoration thereof must be filed only within a period of thirty days from the date of the said order and not thereafter. In that view of the matter, the date when the decree holder acquired the knowledge of the order of dismissal of the execution petition was, therefore, wholly irrelevant."
10. The aforesaid decision made it clear that an application filed under Section 5 of the Limitation Act is not maintainable in a proceeding arising to attract the provision under Order 21 of the Code of Civil Procedure. Application under the said provision has, thus, expressly been excluded, if it relates to Order 21 of the Code of Civil Procedure. In that view of the matter, even an application filed under Section 5 of the Limitation Act is not maintainable and for the said purpose, the inherent power of the Court cannot be invoked. Rule 106 of Order 21 Civil Procedure Code does not make any reference to the same, saying that the Section 5 of the Limitation Act would be applicable.
11. Order 21, Sub rule 3 of Rule 106, CPC reads as follows :
"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."
In view of this, the order of the Court below ought to be upheld. It was further held that the question of invoking the inherent power under Section 151, Civil Procedure Code, does not arise in this case, on account of the specific provision contained under Rule 106 of Order 21, Civil procedure Code.
12. The Hon'ble Supreme Court has given a categorical finding that the principles underlying the provisions prescribing limitation are based on public policy aiming at justice and the principle to repose and intended to induce claimants to be prompt in claiming relief and the same shall reach finality within the time frame, according to law.
13. In this regard, learned counsel for the respondents also referred to the decision, Sitharama Chetty and another vs. Cotha Krishnasami Chetty, reported in 1913 (25) MLJ 264, wherein this Court held as follows :
"8. In England a party relying on the statute must plead it. As regards personal actions other than actions on penal statutes the defence of the statute may be specially pleaded even if it appears on the face of the statement of claim that the cause of action accrued out of the limited time. Darby and Bosanquet on the Statute of Limitations Ex. 2 page 542. Mr. Ramachendra Aiyar on behalf of the plaintiff contended that a party could waive the statute if he liked, that the defendant's admission in the suit of 1906 amounted in effect to an anticipatory waiver of the statute as regards any claim which might subsequently be made upon the note and this being so the plea of limitation raised in this suit should on equitable grounds be disregarded. The answer to this as it seems to me, is that the parties cannot waive the statute by agreement. It would appear to be the law of this country that parties cannot waive or contract themselves out of the law of limitation. The law is thus stated by Mr. Mitra in his book in the Law of limitation " An agreement by a person against whom a cause of action has arisen that he would not take advantage of the statute cannot affect its operation on the original cause of action unless indeed such agreement amounts to an acknowledgment of liability which the statute itself recognises as an exception to the rule " Mitra, edition V volume I p. 39. Again on page 86 " Reasons of public policy having dictated the enactment of the Law of limitation the Indian legislature has since 1871 expressly declared that, whether the defence of limitation be pleaded or not, the Courts, whether of first instance or of appeal are bound to give effect to such law. See Section 4 of Act IX of 1871, and Section 4 of Act XV of 1877, and the illustrations. The bar of limitation cannot be waived, and suits and other proceedings must be dismissed if after the prescribed periods of limitation." And on page 248 "A law of limitation and prescription may appear to operate harshly or unjustly in particular cases but when such a law has been adopted by the state, for reasons which justify the rule in the majority of cases, it must, if unambiguous, be applied with stringency and no individual case to which those reasons are inapplicable can be excepted from its operation. The general good of the community requires that even a hard case should not be allowed to disturb the law. The rule must be enforced even at the risk of hardship to a particular party. The Judge cannot on equitable grounds enlarge the time allowed by the law, postpone its operation or introduce exceptions not recognised by it..."
14. In Damodaran Pillai's case (cited supra), the Hon'ble Apex Court has ruled thus :
"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 mater, 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. "
15. In the instant case, admittedly before the Executing Court, the petitioners / judgment-debtors appeared through their counsel and an exparte order was passed on 17.11.2009, on account of the non-appearance of the petitioners. However, the petitioners have not filed application within 30 days to set aside the exparte order for the reasons best known to them. Hence, the unnumbered application was ordered to be returned on 19.01.2010 as time barred, on the ground that the petition was not maintainable, as it was filed after the expiry of 30 days. Subsequently, on 23.02.2010, the petitioners filed a petition with an affidavit to condone the delay. The Hon'ble Apex Court has categorically held that so far as the Execution proceeding under Order 21 CPC is concerned, application being filed under Section 5 of the Limitation Act is not maintainable.
16. In such circumstances, I could not find any error or illegality in the impugned order passed by the Court below, so as to warrant any interference by this Court. Accordingly, the Civil Revision Petition is dismissed and consequently, connected miscellaneous petitions are also dismissed.
17. Learned counsel appearing for the petitioners requested that atleast some time to be granted to the petitioners / judgment-debtors to vacate and hand over the possession of the property. Considering the arguments advanced by the learned counsel appearing for the petitioners, I find it reasonable, while dismissing the petition to provide reasonable time, accordingly, time is granted for the petitioners to vacate and hand over the possession of the property, within a period of one month from the date of receipt of a copy of this order without further extension of time. In case, petitioners failed to hand over the possession, the respondents / decree-holders will be at liberty to proceed for appropriate remedy and the Executing Court shall pass orders forthwith with costs.
17.03.2011 Index : Yes Internet : Yes trp / tsvn To The District Munsif Thiruvarur.
S.TAMILVANAN, J trp / tsvn C.R.P. (NPD) No.1222 of 2010 17-03-2011