ORDER D.S.R. Varma, J.
1. This civil revision petition is directed against the order, dated 5-11-2002, passed by the Principal Senior Civil Judge at Kumool, dismissing the application in E.A. No. 373 of 2002 in E.P, No. 460 of 1997 in O.P. No. 132 of 1991, filed under Section 151 of the Code of Civil Procedure to condone the delay of 450 of days in filing an application for restoration of the said E.P.
2. The petitioner is the decree-holder and the respondent is the judgment-debtor.
3. For the sake of convenience, the petitioner and the respondent will be referred to as "the decree-holder and judgment-debtor" respectively.
4. The factual background in short is that in Land Acquisition Proceedings, some amount along with additional market value had been awarded by the Civil Court towards compensation in O.P. No. 132 of 1991, In order to recover the said amount, the present E.P., had been filed by the decree-holder after a lapse of more than eleven years, but within the period of limitation. The actual amount of compensation had been received by the decree-holder and the said E.P., had been filed only to recover the additional market value. The Court below directed attachment of movables of the judgment-debtor subject to payment of process fee. It appears that since the process fee was not paid within the prescribed time, the said E.P., itself was dismissed by an order, dated 15-9-2001, for non-compliance of the conditional order i.e., payment of process fee. The decree-holder contended that his Advocate owing to his pre-occupation could not attend the Court on that particular day and the case had been entrusted to his colleague, but unfortunately since there was no representation, the said E.P., was dismissed. The decree-holder further states that even after it was informed by his Advocate, he could not file any application seeking restoration as he was afflicted with cardiac problem and that he was advised not to travel. Hence, the present E.A., was filed seeking condonation of the delay of 450 days in filing an application seeking restoration of the said E.P.
5. The said application was dismissed by the Court below mainly on the ground that the time prescribed under Order 21, Rule 106 of the Code of Civil Procedure to set aside the order passed under Order 21, Rule 105 of the Code of Civil Procedure is 30 days and inasmuch as the said application had been filed beyond the prescribed period of limitation no remedy is available for the parties to seek condonation of such a delay, It was further held by the Court below that the provisions of Section 5 of the Limitation Act are not applicable to the execution proceedings and as such invocation of inherent power under Section 151 of the Code of Civil Procedure is impermissible. Of course, the application was dismissed on merits also disbelieving the alleged illness of the decree-holder since there was no material placed on record substantiating his plea. Hence, the present civil revision petition.
6. The main contention of the learned Counsel appearing for the decree-holder is that the Code of Civil Procedure prescribes period of limitation as 30 days under Sub-rule (3) Rule 106 of Order 21 of the Code of Civil Procedure to set aside the order passed ex parte. Therefore, in the interests of justice, he contends that an application is maintainable under Section 151 of the Code of Civil Procedure.
7. Per contra, Sri Rama Rao, the learned Assistant Government Pleader for Arbitration appearing for the judgment-debtor, contends that the principles of Limitation Act under Section-5 are inapplicable to the proceedings under Order-21 of the Code of Civil Procedure. Therefore, when there is specific exclusion of Order-21 from the purview of Section-5 of the Limitation Act, the same cannot be entertained by invoking the jurisdiction under Section-151 of the Code of Civil Procedure. In order to substantiate his contention, he heavily relies on the judgment rendered by a Division Bench of this Court in B. Santhamma v. B.Koti Reddy, 1987 (2) APLJ 135 (DB) and also another judgment of a learned Single Judge of this Court in Gunda Jagan Mohan Rao v. Kanneti Krishnaiah, , which was rendered following the judgment of the Division Bench B.Santhamma v. B.Koti Reddy, (supra).
8. Before I deal with the judgment of the Division Bench of this Court B. Santhamma v. B. Koti Reddy, (supra), for better appreciation, I deal with the judgment of the learned Single Judge of this Court Gunda Jagan Mohan Rao v. Kanneti, (supra).
9. From a perusal of the judgment of the learned Single Judge Gunda Jagan Mohan Rao v. Kometi (supra), it could be seen that his Lordship while following the judgment of the Division Bench of this Court B.Santhamma v. B. Koti Reddy (supra), also referred to another judgment rendered by another learned Single Judge of this Court in Nenugopalaswamy Devasthanam, Konthivada v. K. Saraswati, 1987 (1) ALT 37 (NRC), wherein it was held as under:
"Section 5 of the Limitation Act does not apply to any of the applications arising under Order XXI of the Code. Order 21, Rule 106 of the Code expressly prescribes a limitation for setting aside an ex parte order or restoration of the application dismissed for default under Sub-rule (3). Therefore, within the parameters of the limitation the application has to be filed, and by necessary implication the applicability of Section 5 of the Limitation Act cannot be extended. Accordingly, the executing Court has no jurisdiction to entertain the application filed beyond the limitation prescribed under Sub-rule (3) of Rule 106 of Order 21 of the Code."
10. The Division Bench on a reference while considering the correctness of the view taken in Mupparaju Sreeramulu v. Pidikiti Kotaiah, 1980 An.WR 174, and while accepting with the same, noticed that Section 5 of the Limitation Act expressly excludes the applicability of the provisions to the proceedings under Order 21 of the Code of Civil Procedure.
11. Possibly, to obviate this difficulty, the Madras High Court introduced an amendment making the provisions of the Limitation Act to Order 21, which was adapted by the Andhra Pradesh.
12. In the said amendment of Madras High Court, as adapted by Andhra Pradesh, Sub-rule (4) of Rule 105 of Order 21 reads as under:
"The provisions of Section-5 of the Indian Limitation Act, 1963, shall apply to the applications under Sub-rule (1)."
13. Further, while dealing with the amendment made to the Code of Civil Procedure in 1976 and the effect thereof, the Division Bench of this Court B. Santhamma v. B. Koti Reddy, (supra) observed as under:
"It is patent that the applicability of Section 5 is excluded. Even under unamended provision Section 5 would not have been made applicable but for the amendment crystallized into Sub-rule (4) of Rule 105, Section 97 of the amending Act expressly excludes the carry forward of amendment under the old Code if they are inconsistent with the new Code. Order 21, Rule 106 by omission of Sub-rule (4) of Rule 105 indicates that Section 5 of the Limitation Act is not applicable. The present Rule 106 is similar to old Rule 105 without Sub-rule (4). The amendment to the old provision was necessitated in view of Section 5 of the Limitation Act baring the applicability. The unamended Order 21, Rule 105 did not contain any provision regarding the applicability of Section 5 of the Limitation Act and but for the amendment in Sub-rule (4), Section 5 would not have been made applicable."
14. From the above, the view of the Division Bench is obvious to the effect that the amendment made by the Madras High Court, which was adapted by the Andhra Pradesh, Sub-rule (4) of Rule 105 of Order 21 of the Code of Civil Procedure had become extinct, implying thereby that Section 5 of the Limitation Act and the express bar created therein would automatically come into force and accordingly agreed with the decision in Mupparaju's case (supra).
15. From the above, for better appreciation, I delve into the legislative history of Order 21, Rules 105 and 106 vis-a-vis Section 5 of the Limitation Act in brief.
16. Prior to the amending Act of 104 CPC, which came into effect from 1-2-1977, Rules 105 and 106 of Order 21 are as under:
Rule 105: Hearing of application :--(1) The Court, before which an application under 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.
"Rule 106: Setting aside orders ex parte, etc. :--(1) The applicant, against whom an order is made under Sub-rule (2) of Rule 105 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 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.
(2) No order shall be made on an application under Sub-rule (1) unless notice of the application has been served on the other party.
(3) 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 pane order, the notice was not duly served, within thirty days from the date when the applicant had knowledge of the order."
17. The provisions of said rules does not contain Sub-rule (4) applying Section 5 of the Limitation Act. Subsequently, in order to over come this situation, the Madras High Court introduced Sub-rule (4) to Rule 105 of Order 21, which was referred to already supra, by which Section 5 of the Limitation Act was made applicable to proceedings under Order 21.
18. Section 97 of the amending Act 104 of 1976 deals with Repeal and Savings, relevant of which is as under:
"Repeal and Savings :--(1) Any amendment made, or any provision inserted in the principle Act by a State Legislature or a High Court before the commencement of this Act shall, except insofar as such amendment by this Act, stands repealed.
(2) Notwithstanding that the provisions of the Act have come into force or the repeal under Sub-section (1) has taken effect, and without prejudice to the generality of the provision of Section 6 of the General Clauses Act, 1897 (10 of 1897).
19. Actually, this was the provision, which prompted the Division Bench to hold that Section 97 of the amending Act expressly excluded the carry forward of amendment under the old Code to the extent they were inconsistent with the new Code.
20. The net result, pursuant to the said judgment of the Division Bench is that, the principles of Limitation Act were held to be inapplicable to the proceedings under Order 21 and unamended Rule 105 had been translated into Rule 106, after the amending Act of 104 of 1976. Therefore, for the present purpose we have to deal with Rule 106, which is analogous to Rule 105 old.
21. On 20-1-1992, the Government have issued a Gazette Notification proposing an amendment to Rule 106 of Order 21 of the Code, calling for objections from all interested persons indicating that the issue of amendment would be taken up for consideration by the High Court within a period of two weeks from the date of said publication in the Gazette.
22. For ready reference, the said notification is extracted, which is as under:
Andhra Pradesh Rules and Notifications Amendment to Rule 106 of Order 21 of Civil Procedure Code (Published in A.P Gazette RS to Part II (EO) dated 20-1-1992) Roc. No. 2475/SO/91. Under the provisions of Section 122 of the Code of Civil Procedure, 1908, of the proposed draft amendment to Rule 106, Order 21 of Civil Procedure Code is published for information of all persons interested and it is hereby notified that the said drat amendment as well as any objections of suggestions relating thereto which may be received from any person will be taken up for consideration by the High Court within a period of two weeks from the date of publication of this notification in the Andhra Pradesh Gazette.
AMENDMENT The following sub-rule shall be added as Sub-rule (4) after Sub-rule (3) of the Rule 106 of Order 21 CPC:
Sub-rule 4 "The provisions of Section 5 of Indian Limitation Act, 1963, shall apply to all applications under Sub-rule (3)."
23. Subsequently, the final Notification, dated 30-11-1992, published by the Government in the Gazette is extracted hereunder for ready reference:
THE ANDHRA PRADESH GAZETTE PUBLISHED BY AUTHORITY N0.25 HYDERABAD, MONDAY, NOVEMBER 30, 1992.
NOTIFICATIONS BY HEADS OF DEPARTMENTS ETC.
JUDICIAL NOTIFICATIONS HIGH COURT OF ANDHRA PRADESH:
AT HYDERABAD AMENDMENT TO RULE 106 OF ORDER XXI OF CIVIL PROCEDURE CODE, 1908 ROC.No.2475/SO/91. - Under the provisions of Section 122 of the Code of Civil Procedure, 1908 (Act V of 1908) and with the previous approval of the State Government, the High Court hereby makes the following amendment to Rule 106 of Order XXI of Civil Procedure Code.
AMENDMENT The following sub-rule shall be added as Sub-rule (4) after Sub-rule (3) of the Rule 106 of Order XXI Civil Procedure Code;
SUB-RULE (4)
"The
provisions of Section 5 of Indian Limitation Act, 1963 shall apply to all applications tinder Sub-rule (3)"
.
High Court of Andhra Pradesh A. HANUMANTHU, Hyderabad. Registrar (Administration) 30th November, 1992.
24. From the above, it is clear that there had been an amendment to Rule 106 of Order 21 by way of adding Sub-rule (4) to Rule 106, applying the provisions of Section 5 of the Indian Limitation Act, 1963, to applications made under Sub-rule (3) of Rule 106, made by the High Court with the previous approval of the State Government.
25. As already noticed, Sub-rule (3) prescribes a period of 30 days to file an application for restoration. Therefore, now it is clear that by virtue of the said amendment of the Andhra Pradesh High Court exercising the jurisdiction under Section 122 of the Code, Sub-rule (4) of Rule 106 enables the Court to invoke the principles of Section 5 of the Limitation Act and condone the delay in appropriate cases, implying thereby that any applications pursuant to the orders passed under Sub-rule (3) of Rule 106 cannot just be brushed aside on the ground that such applications have been filed beyond 30 days and that Section 5 of the Limitation Act has no application.
26. Obviously, this situation was not in existence when the Division Bench held as above. Further more, the judgment of the Division Bench was absolutely unexceptionable inasmuch as in the prevailing circumstances at that point of time in view of Section 97 of the amending Act 104 of 1976. Now, by virtue of the change in the legal position, the situation has been changed and the status of Sub-rule (4) of Rule 105 of Order 21 prior to Amending Act 104 of 1976 had been restored by way of amendment made by the High Court in the year 1992, in the present shape of Sub-rule (4) of Rule 106. Perhaps this new amendment was necessitated because of said judgment of the Division Bench B. Santhamma v. B. Koti Reddy (supra).
27. I feel it further desirable, may be for academic purpose, to have a glance at Sections 121 and 122 of the Code.
28. Section 121 deals with the effect of rules of first schedule. Prior to the amendment of 1976, there were more than one schedule but after 1976 amendment, there is only one schedule that remained, which contains the orders and rules and all other schedules have been omitted phase-wise.
29. Section 122 of the Code of Civil Procedure (Act 104 of 1976) reads as under:
"Power of certain High Courts to make rules:--High Courts not being the Court of a Judicial Commissioner may, from time to time after previous publication, make rules regulating their own procedure and the procedure of the Civil Courts subject to their superintendence, and may by such rules annul, alter or ad to all or any of the rules in the First Schedule."
30. From the above, it is abundantly clear that the High Court has the power to make rules regulating their own procedure and procedure of the civil Courts. But, this power has to be exercised subject to the approval by the State Government as contemplated under Section 126 of the Code.
31. Section 127 of the Code postulates that the rules so made shall come into force after the same are published in the Official Gazette. The two publications issued by the High Court, which are extracted above, goes to reveal that all the formalities prescribed under the above provisions have been fully satisfied and came into force from the date of their notification i.e., 30-11-1992 and from that date Sub-rule (4) of Rule 106 has been very much in force and the jurisdiction of the executing Court while dealing with the proceedings issued under Rule 106, particularly a proceeding under Sub-rule (3) of Rule 106, has the power to invoke Section 5 of the Limitation Act notwithstanding the express exclusion of it's applicability under the Limitation Act, 1963, to Order 21 of the Code.
32. In this context, I am fortified by the judgment of the Division Bench of this Court in P. Rama Rao v. The Controlling Authority, (DB), (P. S. Misra, Chief Justice, as he then was) speaking for the Bench took note of the view of the Supreme Court in Union of India and Anr. v. Ram Kanwar and Ors., , while approving the decision of the Full Bench of Punjab High Court in Punjab Co-operative Bank Ltd. v. Official Liquidators, Punjab Cotton Press Co., Ltd. and Ors. AIR 1941 Lah. 257 (FB) while dealing with Rule 4 of Letters Patent of the said High Court, held that Rule-4 of the Letters Patent of the said High Court was a special law within the meaning of the Limitation Act, since the said rule was made by the High Court in exercise of the legislative powers conferred under Clause 27 of the Letters Patent.
33. On the same analogy, I am of the view that the rule making power of the High Court is equivalent to the legislative power.
34. Be that as it may, the provisions of the Code are prone to amendments either by the Government concerned or by the respective High Courts. In that process, it is well known that several provisions of the Code of Civil Procedure were again subjected to amendment by the Government of India (through act 46 of 1999, but the said Act I was not given effect for want of Gazette notification for various reasons, which are not relevant.
35. However, Section 32 of the Code of Civil Procedure amendment Act of 1999 (Act 46 of 1999), which reads, to the extent relevant, as under:
"32. Repeal and Savings :--(1) Any amendment made, or any provision inserted in the principal Act by a State Legislature or High Court before the commencement of this Act shall, except in so far such amendment or provisions is consistent with the provisions of the principal Act as amended by this Act, stand repealed, (2) Notwithstanding that the provisions of this Act have come into force or repeal under Sub-section (1) has taken effect, and without prejudice to the generality of the provisions of Section 6 of the General Clauses Act, 1897,--
36. It could be seen from the above that no attempt was made to amend Rule 106 of Order 21 of the Code of Civil Procedure.
37. Again, some of the provisions of the Code of Civil Procedure were amended through Amendment Act 22 of 2002 whereby certain amendments were again made to same of the provisions of the Amending Act of 46 of 1999.
38. However, both the Amending Acts of 46 of 1999 and 22 of 2002 were brought into force with effect from 1-7-2002.
39. Again, it is to be noticed that Section 16 of the Act 22 of 2002 deals with Repeal and Savings which is as under for ready reference:
"Repeal and savings :--(1) Any amendment made, or any provision inserted in the principal Act by a State Legislature or High Court before the commencement of this Act shall, except insofar such amendment or provisions is consistent with the provisions of the principal Act as amended by this Act, stand repealed.
(2) Notwithstanding that the provisions of this Act have come into force or repeal under Sub-section (1) has taken effect, and without prejudice to the generality of the provisions of Section 6 of the General Clauses Act, 1897 (10 of 1987),--
(a)........................
(b)........................
(c)........................
40. From the above, it could be seen that Rule 106 of Order 21 of the Code of Civil Procedure was not subjected to any amendment. Therefore, by virtue of Section 32 of Act 46 of 1999 and Section 16 of Act 22 of 2002 and by necessary implication, the inevitable construction should be that the amendment made by the High Court of Andhra Pradesh through the Judicial Notification, as extracted supra, already remain unsettled and very much in tact.
41. Now, in view of the above, Order 21, Rule 106 has to be read as under:
"Setting aside orders passed ex parts, etc. :--The applicant, against whom an order is made under Sub-rule (2) of the Rule 105 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 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.
(2) No order shall be made on an application under Sub-rule (1) unless notice of the application has been served on the other party.
(3) 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.
(4) The provisions of Section 5 of Indian Limitation Act, 1963 shall apply to all applications under Sub-rule (3)".
42. Now, from the above, it is clear that Section 5 of the Limitation Act which was made applicable to Order 21, Rule 106 of the Code, by virtue of the amendment of 1992 introducing Sub-rule (4), unfortunately the same was not published in any of the publications, which are wide in circulation and handy to the Bar and Bench,
43. Hence, I feel it appropriate to direct the Registry to take all necessary steps to see that Sub-rule (4) of Rule 106 of Order 21 is properly and widely published.
44. Coming to the present set of facts of the case, as already noticed, the application in E.A, No. 373 of 2002 filed by the decree-holder had been dismissed, of course, though incidentally and slightly touching on merits, the main ground for such dismissal is that the provisions of Section-5 of the Limitation Act is not applicable and therefore the provisions of section 151 also cannot be invoked,
45. But, having regard to the above legal position, the invocation of the provisions of section 151 does not arise inasmuch as Sub-rule (4) of Rule 106 of Order 21 of the Code is very much available for the decree-holder and enabling the Court to invoke the jurisdiction under the said provision. Consequently, the executing Court has to necessarily examine as to whether there was a real and valid reason to condone the delay or not but certainly not in a perfunctory manner as was done by the Court below.
46. Incidentally, I may also indicate that the Division Bench of this Court in the judgment P. Rama Rao v. The Controlling Authority (supra) at Page 431 observed thus:
"It appears it has benefitted itself for a very long period of time by such amount of money which legitimately belongs to the employees. A recourse to a technicality on such facts, in our opinion, shall be wholly unfair. No one, who has benefited himself at the cost of another, should be allowed to resist the claim against him on grounds as technical as the law of limitation, more so, when such a person is a 'State' under Article 12 of the Constitution of India,"
47. For the foregoing reasons, the civil revision petition is allowed, the impugned order is set aside, and the matter is remanded back to the Court below to examine the contentions of the decree-holder and pass appropriate orders, keeping in view the observations made by the Division Bench of this Court in P. Rama Rao v. the Controlling Authority, (supra) and also the meager amount that was involved. However, there shall be no order as to costs.
48. Finally, this Court puts on record its gratitude to Mr. Y. Chandra Sekhar, Advocate, for rendering an able and effective assistance, as amicus curiae.
"Section 5 of the Limitation Act