Bollareddy Santhamma v. Bollareddy Kumar Kotireddy And Others

P.Ramachandra Raju, J.:-

(1) The revision petitioner is the decree holder in os no. 125/74. The short question involved is whether an application under section 5 of the limitation act to restore ea no. 1140/76 dismissed for default on 1 - 2 - 1978 is maintainable. The district munsif by the impugned order dt. 17 - 12 - 1979 held that such an application is maintainable and hence this revision. The revision petitioner obtained a decree in os no. 125/74 on the file of the district munsif's court, nur vid. She was executing the decree against respondents 1 and 2 in ep no, 25/71 on the file of district munsif's court, vijayawada. She brought the property of the 2nd judgment debtor to sale on 28 - 2 - 1972. At such sals, the 3rd respondent became the auction purchaser. The second judgment - debtor filed ea no. 1140/76 to set aside the sale. That application stood posted for hearing on 1 - 2 - 1978 on which date he could not attend court. Ea no. 1140/76 was dismissed on 1 - 2 - 1978 for default. The 2nd judgment - debtor applied for setting aside the default order and as there was delay in making that application, he filed ea no. 1124/78 under section 5 of the limitation act for condoning the delay that had occurred. He gave a reason that he was attacked by chest pain two days prior to 1 - 2 - 1978 and produced a medical certificate in proof of that allegation. The application was opposed by the auction purchaser mainly on the ground that it was not maintainable under section 5 of the limitation act. Both the parties invited a finding of the district munsif regarding the maintainability of the application. The learned district munsif held that such an application to condone the delay was maintainable it is questioning that order that the decree - holder has come to this court in revision. Section 5 of the limitation act 1963 is inapplicable to applications filed under any of the provisions of order 21. Cpc prior to section 97 of the amending act of 1976, order 21 rule 105 was containing a provision that an application may be admitted after the said period of 30 days if the applicant satisfies the court that he had sufficient cause for not making the application within such period. Section 97 (1) of the civil procedure

"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 provisions is consistent with the provisions of the principal act as amended by this act, stand repealed."

The question posed is whether the said provision in rule 105 introduced by the high court was in any manner inconsistent with order 21 rule 106 as amended by the amendment act of 1976. Order 21 rule 106 did not provide for the provision that was in force prior to the amendment. Such a provision would stand repealed if it was inconsistent with the provisions as enacted by the amending act of 1976. Otherwise, the provision remains uneffected and continues to be applicable to govern applications for condoning the delay in filing such applications in matters arising under order 21 rule 106 cpc. Rule 106 as amended, made only provision for filing applications for setting aside orders passed ex parte etc. It does not contain any provision inconsistent with the provision made by the high court by way of enabling a partv to apply in proper cases for condonation of dalay in setting aside orders passed ex. Parte etc. There is, therefore, no inconsistency between the provision as was obtaining prior to the amending act and the manner in which order 21 rule 109 stands at present. I am, therefore, of the view that though reference to section 5 of the limitation act is inapt, an application to condone the delay could be filed under order 21, rule 105 (4) as obtaining in this state. The amending act made substantial changes regarding the manner in which claims made under order 21, rule 58 and order 21, rule 101 cpc could be enquired into. The previous right of suit which was available prior to the amendment is no longer available and the executing court itself is expected to determine all questions including questions relating to right, title or interest in the property arising between the parties to the proceeding or their representatives. If the view were to be taken that even in proper cases the benefit of the provision in rule 105 is not to be availed of, the parties who otherwise have genuine claims will stand greatly prejudiced. Mr. \enkat reddy has, however, submitted that jayachandra reddy, j. In vasireddy kitchaiah vs. Peruri ramachandra rao and narsinga rao, j in mupparaju sreeranmlu vs. Pidikiti kotaiah held that the benefit of the provision is no longer available after the cpc amending act of 1976. In kitchayya's case (supra) jayachandra reddy, j. Had apparently taken the view that as section 5 of the limitation act specifically excluded applications under any of the provisions under order 21 cpc reference made to section 5 in rule 105 (4) cpc has no longer the validity after the new limitation act came into force. In my view, no such distinction can be made so long as the substance of the provision is that the applicant should satisfy the court that he had sufficient cause for not making the application within such period. In sreeramulu's case (supra) narsinga rao, j. Held that there is inconsistency between the old provisions and the amended provisions. I have earlier stated that a right given to a party under or. 21 rule 105 (4) cfc in the pre - amended code is in no way inconsistent with any of the provisions made by the amending act of 1976. The correctness of the two decisfons requires reconsideration and more so in view of the decision of the supreme court in mangu ram vs. Delhi municipality. Applications of the nature involved in this revision are frequently filed during the course of execution in various courts in this state and it is imperative that the question involved is immediately referred to a division bench. The papers in this revision petition along with a copy of this order may, therefore, be placed before the chief justice for constituting a division bench at an early date to determine the following questions :

" (1) whether after the cpc amendment act 1976, no application for condoning the delay in making an application under order 21 rule 106 of the amended act can at all be filed : (2) whether such an application could be filed under order 21, rule 105 (4) cpc as obtaining in this state prior to the cpc amendment act of 1976."

In pursuance of the above order of reference dated 31 - 3 - 83 the petition came on for hearing before the division bench and delivered the following :

(2) This civil revision petition is preferred to the division bench at the instance of p. Ramachandra raju, j. Whojentertained a doubt as to the correctness of the decision in muppa aju sriramulu vs. Pidikiti kotaiah (supra). The issue is whether section 5 of the limitation act is applicable to proceedings under order 21 cpc.

(3) The petitioner in the revision petition is the decree - holder. The judgment - debtor filed an application for setting aside the sale and this application was dismissed for default. As there was delay in filing the petition for setting aside the default order, an application to condone the delay was filed under section 5 of the limitation act. This application is registered by the decree - holder contending that section 5 of the limitation act is not applicable io proceedings under order 21 cpc. The plea of the decree - holder is negatived.

(4) Section 5 of the limitation act expressly excludes the applicability of the provisions to proceedings under order 21 cpc. To obviate this disthculty the madras high court introduced an amendment making tht provisions of limitation act applicable and this is adopted by the andhra pradesh sub - rule (4) of rule 105 of order 21 cpc is a sequel to such amendment and order 21 rule 105 (4) is as follows :

"the provisions of section 5 of indian limitation act, 1963 shall apply to applications under sub - rule 1."

(5) The learned counsel for the petitioner sri mohan reddy contends that this provision does not subsist after the amendment of cpc in 1976. Section 97 of the amending act provides that the amendments made by the stat. E or the high court in so far as they are inconsistent with the new provision shall cease to have any effect. The exercise is whether sub - rule (4) of rule 105 shaped by the amendment is inconsistent with the present provisions of cpc order 21, rule 105 sub - rule (6) analogous to order 21 rule 105 sub - rule (5) is conspicuously silent as to the applicability of sec. 5 of the limitation act. Despite of appendage of sub - rule (4) to rule 105 as a sequel to amendment, the amending act introducing rule 106 did not evince any intention to incorporate similar provision. 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 crystalised 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 necessiated in view of section 5 of the limitation act barring 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. The amendment by the high court incorporated as sub - rule (4) cuts into the main provision and a new dimension is given and this is at variance with the main provision. This amendment being not in conformity with the main provision or inconsistent with the main provision, cannot subsist in view of section 97 of the amending act, in view of this, order 21, rule 106, analogous to order 21, rule 105 should be considered as without previous amendment and consequently section 5 of the limitation act is not applicable to proceedings under order 21 cpc. In this view we agree with the decision in 1980 (1) an. W. R. 174.

(6) In this view, the application for condoning the delay in filing the application for setting aside the default order is not maintainable. The order of the court below is set aside. Civil revision petition allowed. No costs.