Holding

The limitation period for a restoration application under Order 21 Rule 106(3) starts from the date of the dismissal order, Section 5 of the Limitation Act does not apply, and the court cannot condone the delay using inherent powers.

Summary

The respondent (South Indian Bank Ltd) obtained a decree against the appellants (Damodaran Pillai & ors.) and filed an execution petition which was dismissed for default on 1 November 1990 under Order 21 Rule 105(2) of the CPC. The appellants filed a restoration application on 4 April 1998, claiming they learned of the dismissal only on 25 March 1998, i.e., after an eight‑year delay. The trial court rejected the limitation objection and allowed the restoration; the High Court dismissed the appellants' revision. The Supreme Court examined whether the 30‑day limitation under Order 21 Rule 106(3) starts from the date of the dismissal order or from the date of knowledge, whether Section 5 of the Limitation Act applies, and whether the court can invoke its inherent powers to condone delay. It held that the limitation period begins on the date of the order, not on knowledge, that Section 5 of the Limitation Act is inapplicable to proceedings under Order 21, and that the court cannot use inherent powers to condone the delay. Consequently, the restoration application was time‑barred and the appeal was allowed.

Issues considered

Does the 30‑day limitation for filing a restoration application under Order 21 Rule 106(3) commence from the date of the dismissal order or from the date the applicant gains knowledge of the order?
Is Section 5 of the Limitation Act, 1963 applicable to restoration applications under Order 21 of the CPC?
Can a civil court invoke its inherent powers under Section 151 CPC to condone delay where Section 5 is inapplicable?

Legislation cited

Code of Civil Procedure, 1908s. Order 21 Rule 105(2), s. Order 21 Rule 106(3), s. Section 151
Limitation Act, 1963s. Section 5

Subjects

execution petitionrestoration applicationlimitation periodOrder 21 CPCSection 5 Limitation Actinherent powerscondonation of delayex parte orderdecree holderjudgment debtor

Judgment

DAMODARAN PILL4I AND ORS. A

SOUTH INDI;~ BlNK LTD.

SEPTEMBER 8, 2005

[ASHOK BHAN AND S.B. SINHA, JJ.] B

Code of Civil Procedure, 1908:

Order 21 Rules 105(2), 106(/) and (3) and Section 151.
c
Execution of Decrees-Decree-holder filed execution petition which was
dismissed for default under R. 105(2)-Decree-holder filed restoration
application much later on the ground that he acquired the knowledge of
dismissal ofthe execution petition only a few days earlier-Trial court condoned
the delay and allowed the said restoration application under R. 106(3)-High D
Court dismissed the revision filed by the judgment-debtor-Correctness of-
Held: Starting point of limitation for filing of restoration application is ihe
date of order and not the knowledge thereof-Date of knowledge of the order
is applicable only when that order was ex parte and that too when proper
notice was not served on the judgment-debtor-Further, S. 5 of the Limitation
Act is not applicable to proceedings arising under 0. '11 CPC-Hence for the E
purposes of condonation of delay inherent powers of the Court cannot be
invoked.

Limitation Act, 1963:

Section 5-Period of limitation~Extension of-Grounds for-Held: F
Hardship or injustice cannot be a ground for extending the period of limitation.

The respondent obtained a decree against the appellant for a certain
sum and filed an Execution Petition for execution of the said decree, which
was dismissed for default under Order 21 Rule 105(2) of the Code of Civil
Procedure, 1908. An application for restoration of the said Execution G
Petition was filed by the respondent after a long delay of about 8 years
. on the premise that it came to learn about the dismissal of the said
Execution Petition only a few days prior to the filing of the restoration
• application.
117 H
118 SUPREME COURT REPORTS [2005) SUPP. 3 S.C.R.

A Before the trial· court the appellant raised the contention that the
said restoration application was filed beyond the prescribed period of
limitation. The trial court rejected the said contention. The High Court
dismissed the revision petition filed by the appellant-judgment debtor.
Hence the appeal.

B On behalf of the appellant, it was contended that in terms of Rule
l 06(3) of Order 21 of the Code a restoration application is required to be
filed within 30 days from the date of passing of the order and not
thereafter and for the said purpose Section 5 of the Limitation Act, 1963
is not applicable and that the Executing Court could not have, thus,
C condoned the delay in exercise of its inherent power or otherwise.

On behalf of the respondent, it was contended that keeping in view
the peculiar facts and circumstances of the present case the Executing
Court should be held to have inherent power to condone the delay.

D Allowing the appeal, the Court

HELD: I. A bare perusal of Rule 106(3) of Order 21 of the Code of
Civil Procedure, 1908 will clearly go to show that when an application is
dismissed for default in terms of Order 21 Rule 105(2), the starting period
of limitation for filing of a restoration application would be the date of
E the order and not the knowledge thereof. As the applicant is represented
in the proceeding through his Advocate, his knowledge of the ordi:r is
presumed. The starting point of limitation being the knowledge about the
disposal of the execution petition would arise only in a case where an a
parte order was passed and that too without proper notice upon the
judgment debtor and not otherwise. Thus, if an order has been passed
F 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. Therefore, the date when the decree-
holder acquired the knowledge of the order of dismissal of the execution
petition, therefore, is wholly irrelevant. (121-F, G, H; 122-A)
G 2. It is also trite that the civil court in absence of any express power
cannot condone the delay. For the purpose of condonation of delay in
absence of applicability of the provisions of Section 5 of the Limitation
Act, 1963, the court cannot invoke its inherent power. [122-D)

H 3. An application under Section 5 of the Limitation Act is not
DAMODARAN PILLAI v. SOUTH INDIAN BANK LTD. [S.B. SINHA, J .] 119

.- maintainable in a proceeding arising under Order 21 of the Code. A
Application of the said provision has, thus, expressly been excluded in a
proceeding under Order 21 of the Code. Therefore, 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. (122-EJ

Lala Ram v. Hari Ram, (1969) 3 SCC 173, relied on. B
Ayappa Naicker v. Subbamma/, (1984) 1 MWR 214, M Abdul Salam
v. Lourdusami Chettiar, AIR (1962) Mad. 386,"Sri Tonka/a Appa/aswamy
Gari Samba Murthy v. Gopasundara Sabatho, AIR (1963) AP 127 and
Ganapathy v. Murugesa Chetty, (1989) 2 L.W. 38, approved.
c
Khoobchand Jain v. Koshi Prasad, AIR (1986) MP 66, held
inapplicable.

4. Hardship or injustice may be a relevant consideration in applying
the principle of interpretation of statute, but cannot be a ground for D
extending the period of limitation. [124-E)

R. Rudraiah v. State of Karnataka, (1998) 3 SCC 23, relied on.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. I 079 of 2004.

From the Judgment and Order dated 22.7.2003 of the Kerala High E
Court in C.R.P. No. 1033 of 2002.

P. Krishnamoorthy and M.T. George for the Appellants.

V.B. Joshi for the Respondent.
F
The Judgment of the Court was delivered by

S.B. SINHA, J. Interpretation of sub-rule (3 ) of Rule I 06 of Order
XXI of the Code of Civil Procedure (Code) falls for consideration in this
appeal which arises out of the judgment and order dated 22nd July, 2003
passed by a learned Single Judge of the High Court of Kerala in CRP No. G
I 033 of 2002 whereby and whereunder the Revision Petition filed by the
appellants herein from an order dated 6. I0.2001 passed by the Principal sub-
Judge Kollam in Execution Petition No. 234/88 in O.S. No. I 78/84 was
dismissed.
H
120 SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.

A The basic fact of the matter is not in dispute.

The respondent herein obtained a decree against the appellant herein
for a sum of Rs. 78,155.80 in a suit being No. 178/84 filed before the
Principal sub-Judge, Kollam. An Execution Petition was filed by the respondent
herein for execution of the said decree in the said court which was marked
B as Execution Petition No. 234 of 1988. It is not in dispute that the said
Execution Petition had been set down hearing. It was dismissed for default
on 1.11.1990. It is also not in dispute that an application for restoration of
the said Execution Petition was filed by the respondent herein on 4.4.1998
inter alia on the premise that it came to learn about the dismissal of the said
C Execution Petition only on 25.3.1998.

Before the learned Trial Court the appellant herein inter a/ia raised the
contention that the said restoration application was filed beyond the prescribed
period of limitation.

D The learned Subordinate Judge in terms of his order dated 6th October,
200 I rejected the said contention. The Revision Petition preferred against
the same was dismissed summarily. The appellant is, thus, before us.

Mr. P. Krishnamoorthy, learned Senior Counsel appearing on behalf of
the appellant raised a short question in support of this appeal contending that
E in terms of sub-rule (3) of Rule 106 of Order XXI of the Code of Civil
Procedure a restoration application is required to be filed within 30 days
from the date of passing of the order and not thereafter and for the said
purpose Section 5 of the Limitation Act, 1963 is not applicable. It was urged
that the Executing Court could not have, thus, condoned the delay in exercise
of its inherent power or otherwise.
F
Mr. V.B. Joshi, learned counsel appearing on behalf of the respondent,
on the other hand, contended that keeping in view the peculiar facts and
circumstances of this case the Executing Court should be held to have inherent
power to condone the delay.

G It is not in dispute that the Execution Petition was dismissed in terms
of the provisions of Rule I 05 of Order XXI of the Code of Civil Procedure.
Sub-rule (I) of the said Rule provides for fixing a day for hearing of the
application; whereas sub-rule (2) thereof envisages that if on the day so fixed
or on any other day to which the hearing may be adjourned, the applicant
H does not appear when the case is called on for hearing, the Court may make
DAMODARAN PILLAI v. SOUTH INDIAN BANK LTD. [S.B. SINHA, J.] J21

an order that the application be dismissed. Sub-rule (3) of the said Rule A
postulates hearing of an application ex-parte in a case where the applicant
appears and the opposite party to whom the notice has been issued by the
Court does not. Sub-rule (I) of Rule 106 of Order XX! of the Civil Procedure
Code provides for restoration of the application for default or setting aside
of the order passed under sub-rules (2) and (3) of Rule I 05 of Order XX! in B
the following terms:

"The applicant, against whom an order is made under sub-rule (2) of
rule I 05 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 C
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 the further hearing of the application.

Sub-rule (3) of Rule 106 provides for the period of limitation for filing D
such an application which reads as under:

"An application under sub-rule (I) 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." E
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.

The learned Judge, however, while arriving at the said finding failed F
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 I 05, 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. G
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 H
122 SUPREME COURT REPORTS (2005] SUPP. 3 S.C.R.

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.

We may notice that the period of limitation has been fixed by the
B provisions of the Code and not in terms of the second schedule appended to
the Limitation Act, 1963.

It is also not in dispute that the Kerala amendment providing for
application of Section 5 of the Limitation Act in Order XX!, Rule I05 of the
C Code became inapplicable after coming into force of the Limitation Act,
1963, (Act LVI of 1964).

It is also trite that the civil court in absence of any express power
cannot condone the delay. For the purpose of condonation of delay in absence
of applicability of the provisions of Section 5 of the Limitation Act, the court
D cannot invoke its inherent power.

It is well-settled that when a power is to be exercised by a civil court
under an express provision, the inherent power cannot be taken recourse to.

An application under Section 5 of the Limitation Act is not maintainable
E in a proceeding arising under Order XX! of the Code. Application of the said
provision has, thus, expressly been excluded in a proceeding under Order
XX! of- the Code. In that view of the matter, 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.

F In Ayappa Naicker v. Subbammal and Anr., (1984) I Madras Law
Journal Reports 214, M.ohan, J. (as His Lordship then was) opined:

"Therefore having regard to the above language, it was permissible
to have such a provision wherein the position is clearly chariged at
present. Section 5 of the present Limitation Act, 1963, states that any
G· appeal or any application under any of the provisions of Order 21,
Civil Procedure Code, 1908, may be admitted after the prescribed
period if the appellant or the appellant satisfies the Court that he had
sufficient cause for not preferring the appeal or making the application
within such period. The Explanation is omitted as unnecessary.
Therefore, with reference to applications under Order 21, Civil
H
DAMODARAN PILLAI v. SOUTH INDIAN BANK LTD. [S.B. SINHA, J.) 123

Procedure Code, there is the statutory bar in applying section 5 of the A
Limitation Act. It may also be relevant to note section 32 of the
Limitation Act before it was repealed by Central Act LVI of 1974. It
is stated under that section that the Indian Limitation Act, 1908 is
hereby repealed. Therefore, after !st January, 1964, sub-rule (4) of
rule 105 of Order 21, Civil Procedure Code, could no longer be
applied, because of the express language of section 5 of the Limitation B
Act. That is why the Central Code, in rule I06 of Order 21, Civil
Procedure Code, did not make any reference to the same saying that
section 5 of the Limitation Act would be applicable. In view of this,
the order of the Court below ought to be upheld."

It was further held:
c
"The question of invoking inherent powers under section 151, Civil
Procedure Code, does not arise in this case. That is because of the
specific provision contained under rule I06 of Order 21, Civil
Procedure Code. If, therefore, there is repugnancy between the Central D
Code, under rule 106, and the Madras Amendment under sub-rule (4)
of rule I05 of Order 21, it is section 97 of the Civil Procedure Code,
in relation to repeal and savings that would apply. That says that any
amendment made, or any provision inserted in the principal Act by
a State Legislature or a High Court before the commencement of this
Act shall except in so far as such amendment or provision is consistent E
with the provisions of the principal Act, as amended by this Act,
stand repealed."

We respectfully agree with the said opinion.

Similar views have been taken in M Abdul Salam and Ors. v. F
Lourdusami Chettiar, AIR (1962) Madras 386, Sri Tankala
Appalaswamy Gari Samba Murthy v. Gopasundara Sabatho, AIR
(1963) AP 127 and Ganapathy v. Murugesa Chetty, (1989) 2 L.W.
38.

Mr. Joshi, however, placed strong reliance upon Khoobchand Jain and G
Anr. v. Kashi Prasad and Ors., AIR (1986) MP 66. The said decision, in our
opinion, has no application to the facts and circumstances of the present case.
Therein the Execution Application was dismissed on a day which was not
fixed for hearing. The said order of dismissal, therefore, was not passed in
terms of sub-rule (2) of Rule 105 of Order XX! of Code of Civil Procedure. H
124 SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.

A In that situation it was opined:
"In the present case, the decree-holders had already applied for
execution and paid process-fee for issuance of a warrant of attachment.
It was, therefore for the Court to issue a warrant of attachment of
such property as was in possession of the judgment-debtors.
B Submission of the inventory of moveable property in possession of
the judgment-debtors is not necessary under the relevant rules. In
case, the warrant is returned unexecuted, the decree-holders could, in
their discretion, make an application for examination of the judgment-
debtors under R. 41 or could resort to any other mode to recover the
decretal amount."
c
It was further observed:

"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
D .limit is prescribed for invoking the inherent powers of the Court."

The principles underlying the provisions prescribing limitation are based
on public policy aiming at justice, the principles of repose and peace and
intended to induce claimants to be prompt in claiming relief.
E Hardship or injustice may be a relevant consideration in applying the
principles of interpretation of statute, but cannot be a ground for extending
the period of limitation.

In R. Rudraiah and Anr. v. State of Karnataka and Ors., [1998] 3 SCC
F 23 interpretation of Section 48-A of the Kamataka Land Reforms Act, 1961
fell for consideration before this Court which reads, thus:

"48-A. Enquiry by the Tribunal, etc.-( I) Every person entitled to be
registered as an occupant under Section 45 may make an application
to the Tribunal in this behalf. Every such application shall, save as
G provided in this Act, be made before the expiry of a period of six
months from the date of the commencement of Section I of the
Kamataka Land Reforms (Amendment) Act, 1978." Prior to the
amendment of the said Act by Act 1 of 1979, a specific provision
existed for condonation of delay but the same was deleted. A similar
contention, as in the present case, was raised therein which was repelled
H
DAMODARAN PILLAI v. SOUTH INDIAN BANK LTD. 125
by this Court stating: A
"17. It is true there is a principle of interpretation of statutes that the
plain or grammatical construction which leads to injustice or absurdity
is to be avoided (see Venkatarama Iyer, J. in Tirath Singh v. Bachittar
Singh, AIR at 855). But that principle can be applied only if "the
language admits of an interpretation which would avoid it". Shamrao B
V. Parulekar v. District Magistrate, (AIR at 327). In our view Section
48-A, as amended, has fixed a specific date for the making of an
application by a simple rule of arithmetic, and there is therefore no
scope for implying any "ambiguity" at all. Further
:
"the fixation of periods of limitation must always be to some C
extent arbitrary, and may frequently result in hardship. But in
construing such provisions, equitable considerations are out of
place, and the strict grammatical meaning of the words is the
only safe guide"."

In Lala Ram v. Hari Ram, [1969] 3 SCC 173, this Court held that the D
period of limitation can be prescribed under Section 417 of the Criminal
Procedure Code, wherefor it was not necessary for the legislature to amend
the Limitation Act and insert an article dealing with such applications.

For the reasons aforementioned, the impugned judgment cannot be
sustained which is set aside accordingly. The Appeal is allowed. No costs. E
v.s.s. Appeal allowed.