Under challenge is Ext.P7 order whereby the court below allowed E.A. 13 of 2011 filed by the judgment debtor for lifting the attachment and dismissed E.A. 26 of 2011 and E.A. 10 of 2012 petitions filed by the decree holder for review of the order dated 8.11.2005 and also to condone the delay in filing the review petition.
2. The facts fall within a very narrow compass. It is not in dispute that the petitioner before this Court obtained an award in their favour against the respondents for a sum of Rs.5,02,002.15. The award was put in execution as E.P.19 of 2004. As per Ext.P2 it is seen that the E.P. was advanced as per the application made by the decree holder and the court below passed the following order in the E.P.:
“Hearing advances as applied by the decree holder. Execution petition dismissed as it is submitted that there is part payment and decree holder is satisfied with the amount paid.”
Nothing transpired thereafter and after 5 - 6 years, the judgment debtor moved the court below for lifting the attachment of the property. That prompted the decree holder to file two E.As., namely, E.A. 26 of 2011 for reviewing the order dated 8.11.2005 recording satisfaction of the decree and also E.A. 10 of 2012 for condoning the delay of 2067 days in filing the review petition.
3. The court below took the view that if at all the decree holder was aggrieved by the order mentioned above, his remedy was to take recourse under Order XXI Rule 105 of the Code of Civil Procedure and the petition of the present nature is not maintainable and also took the view that being a matter in execution, Section 5 of the Limitation Act cannot be applied and therefore dismissed the delay condonation application and consequently E.A. 26 of 2011. On being satisfied by the facts put forward by the judgment debtor, his application for lifting the order of attachment was allowed. It is the said order that is assailed in this Original Petition.
4. Learned counsel appearing for the petitioner contended that it was an inadvertent mistake committed by the counsel for the petitioner which resulted in Ext.P2 which has been extracted above. It is pointed out that more than Rs.Five Lakhs was due with 18% interest and it is inconceivable that on receipt of Rs.2,50,000/- the decree holder would have agreed that the E.P. can be closed as satisfied. Referring to the affidavit in support of the petition to condone the delay, it is pointed out that after having paid Rs,2,50,000/- the judgment debtor had agreed to pay the balance amount in instalments and that is why the E.P. was not pursued thereafter. The decree remained unsatisfied and more amounts were due from the judgment debtors.
5. Learned counsel appearing for the petitioner also contended that the view taken by the court below that Section 5 of the Limitation Act is not applicable to execution proceedings may be correct. What was sought for was a review of the order in which case Section 5 of the Limitation Act will certainly apply. The view taken by the court below that the petitioner could have taken recourse under Order XXI Rule 105 of the Code may not be correct. Accordingly, it is contended that this Court may allow the delay condonation petition and the review petition and the execution court may be directed to go into the question afresh.
6. Learned counsel for the respondents pointed out that it is too late in the day for the petitioner to contend that it is an inadvertent mistake which resulted in Ext.P2 order. Learned counsel drew the attention of this Court to the fact that Ext.P2 order was passed as early as in 2005 and only when the judgment debtor moved the court for lifting the attachment that the decree holder moved the court seeking to review Ext.P2 by contending that the order dated 8.11.2005 recording satisfaction of the decree is a mistake. Learned counsel went on to point out that no details whatsoever are given in the delay condonation petition and it is under those circumstances that the court below dismissed the petition. Learned counsel fairly conceded that the observation of the court below that Section 5 of the Limitation Act is not applicable may not be legally correct in the facts of the case.
7. As rightly pointed out by the learned counsel for the petitioner and as accepted by the learned counsel for the respondents, the decision of the court below that Section 5 of the Limitation Act has no application may not be correct. So also the view that the proper remedy of the petitioner is to take recourse under Order XXI Rule 105 of the Code. A reading of Order XXI Rule 105 of the Code would clearly show that it has no application to the facts of the case.
8. What was sought for by the decree holder was review of the order dated 8.11.2005 and viewed from that angle if the review petition is out of time Section 5 is attracted and Section 5 will certainly apply. To that extent, the lower court is wrong.
9. The question then arises is whether the delay has been properly explained and whether the reasons given by the decree holder are acceptable.
10. It is here one has to notice that the earlier E.P. was advanced as per the motion made by the decree holder and Ext.P2 order was passed. Thereafter, the decree holder did nothing. As already stated, it was after the judgment debtor moved the petition to lift the attachment then the decree holder moved the court to review the order dated 8.11.2005. In the affidavit in support of the petition to condone the delay and review petition it is mentioned that after paying Rs.2,50,000/- the judgment debtor had undertaken to pay the balance amount in instalments and that prompted the decree holder not to pursue the execution proceedings further. It was contended that there was no representation by the decree holder that the decree was satisfied and that was a wrong impression gathered by the court resulting in a wrong order.
11. There would have been some substance in the contention of the learned counsel for the petitioner had there been such an agreement, mention of the number of instalments by which the judgment debtor agreed to discharge the debt, the instalment amount, the date on which the instalments to be paid etc. were available. Except to say that there was an assurance to pay the balance amount in instalments, no other details are given. One should remember that Ext.P2 order was passed in 2005 and the review petition was filed in 2011 and that too after the judgment debtor had moved the court for lifting the attachment. There is no case for the decree holder that any amount after the date of Ext.P2 has been paid by the judgment debtor. Had there been any substance in the contention now raised by the learned counsel for the petitioner, obviously as soon as the first instalment was defaulted, the decree holder would have taken steps. It is also inconceivable that the decree holder would not have taken care to ensure that payment of the instalments as undertaken by the judgment debtor was got recorded by the court at the time of considering the execution petition.
12. Except for vague statement that the judgment debtor had agreed to pay the balance amount in instalments, there is no reason for condoning the delay.
13. Thus, even though the reason given by the court below may not be sufficient to dismiss the delay condonation petition based non-applicability of the provision of the Limitation Act, the fact remains that the long delay remains unexplained. There is nothing to show that recording of decree as satisfied by Ext.P2 was a result of an inadvertent mistake. No grounds are made out to interfere with the order of the court below, though for different reasons.
This Original Petition is without merits and it is accordingly dismissed.
P. BHAVADASAN, JUDGE sb.