The Civil Revision Petition has been filed challenging the order passed in E.A.No.90 of 2007 seeking to set aside the order dated 28.08.2008, wherein an order of attachment was passed.
2. The petitioner herein is the defendant in the suit. The suit was filed by the respondent in O.S.No.335 of 2001 before the Principal District Court, Tuticorin for rendering the accounts. On 31.07.2007, the suit has been decreed and a preliminary decree was passed by the trial Court. Thereafter, the respondent filed an application in I.A.No.1306 of 2003 for final decree. A Commissioner was appointed and he has also filed a report. The final decree was passed on 07.01.2005, since the petitioner remained ex-parte. In pursuant to the final decree, the respondent filed an Execution Petition in E.P.No.110 of 2006 bringing the suit property for sale.
3. The petitioner herein entered appearance through his counsel, who appeared for him earlier and sought time for filing counter. Since the counter could not be filed in spite of several opportunities an order of attachment was ordered on 04.12.2006. Thereafter, an application was filed by the petitioner in E.A.No.90 of 2007 to set aside the order of attachment. The said application was dismissed on the ground that there was a delay of 24 days, in filing the application and also the petitioner has quoted wrong provision of law. The learned counsel for the petitioner submitted that the delay of 24 days ought to have been condoned by the Court below in the interest of justice and the rejection of the application on the ground of wrong quoting of the provision of law cannot be sustained. The learned counsel has also relied upon the judgment reported in 2004 (12) SCC 253 (K.RUDRAPPA VS. SHIVAPPA) in support of his case, that not withstanding the delay, the application ought to have been allowed. The learned counsel also relied upon the judgment reported in 2006 (3) CTC 171 (S.RAJESWARI VS. S.N.KULASEKARAN AND OTHERS).
4. On the contrary the learned counsel for the respondent submitted that at every stage, the petitioner committed delay deliberately with a sole view to drag on the proceedings. The learned counsel further submitted that a reading of Order 21 Rule 105 and 106 of the Civil Procedure Code, 1908, would clearly show that the Section 5 of the Limitation Act would not be made applicable. According to the learned counsel, the order has been passed on 04.12.2006. The application to set aside the order ought to have been passed within 30 days and hence in the absence of the same, there is no power for the Court to condone the delay by invoking Section 5 of the Limitation Act. The learned counsel also relied upon the judgment reported in 2005 (7) SCC 300 (DAMODARAN PILLAI AND OTHERS VS. SOUTH INDIAN BANK LTD.,) to contend that Section 5 of the Limitation Act 1963 is not applicable for a proceeding under Order 21 Rule 105.
5. Order 21 Rule 105 speaks about the hearing of the application. The said provision is usefully extracted hereunder: 105: Hearing of application: The Court, before which an application undser any of the foregoing rules of this Order is pending, may fix a day 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) 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 ex-parte and pass such order as it thinks fit. A reading of Rule 21 Rule 105 (3) shows that when the respondent in an execution application does not appear, the Court may hear the application ex- parte and pass orders as it thinks fit. Therefore, in the absence of the respondent, the Court can proceed to pass order under Order 21 Rule 105(3).
6. Order 106(3) specifically provides that where there is an ex- parte order, a period of 30 days from the date of order has given to the respondent to file appropriate application. Therefore, the petitioner in the present case ought to have filed the application to set aside the order, if the said order is an ex-parte order within thirty days. Admittedly, in the case on hand an application has been filed 24 days thereafter.
7. In the above said case, the Hon'ble Supreme Court has clearly held that an application under Section 5 of the Limitation Act is not maintainable in a proceeding arising under Rule 21 of the Court. The application of the said provision is thus expressly been excluded in a proceeding of the Order 21 of the Court. Hence, the Hon'ble Supreme Court was pleased to hold that an application under Section 5 of the Limitation Act is not maintainable. The Hon'ble Supreme Court has also proceeded to hold that in those circumstances, the inherent power of 151 of the Civil Procedure Code also cannot be invoked.
8. Therefore, on a reading of the said judgment, this Court is of the opinion that the very application filed by the petitioner is not maintainable. Under those circumstances, this Court is of the opinion that the revision deserves to be dismissed and accordingly, the same is dismissed. However, neither the learned counsel for the petitioner nor the respondent is in a position to produce a copy of the order said to have been passed on 04.12.2006, so as to enable the Court to come to a conclusion as to whether an ex-parte order is passed or not. In any case, such an order can be questioned by filing appropriate application challenging the same but not before the same Court. Similarly, in view of the pendency of the Execution Petition the order passed on 04.12.2006 will not stand in the way of the petitioner from agitating his rights thereafter. With this observation the Civil Revision Petition is dismissed. No costs. Consequently connected Miscellaneous Petition is also dismissed.
RR To The Principal District Munsif Court, Tuticorin.