Writ Petition No. 53826 of 2018 · The High Court
Case Details
- 1 - NC: 2025:KHC:10207 WP No. 53826 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE M.G.S. KAMAL WRIT PETITION NO.53826 OF 2018 (GM-CPC) BETWEEN: SRI. LAKSHMINARASIMHAIAH S/O. NARASIMHAIAH, AGED ABOUT 56 YEARS, RESIDING AT 'LAKSHMI NILAYA', BEHIND GNANABHARATHI HIGH SCHOOL, ANEKAL ROAD, ATTIBELE, BENGALURU-560 102. (BY SRI. ANIL SHEKAR K. S.,ADVOCATE) AND: VENKATESHA EDUCATION SOCIETY NO.16, ARMSTRONG ROAD, BENGALURU-560 001. REPRESENTED BY ITS SECRETARY. …PETITIONER (BY SRI. RAKSHITH KUMAR, ADVOCATE) …RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 09.10.2018 IN MISC.PETN.NO. 435/2016 PASSED BY THE VI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY, CCH NO.11 VIDE ANNX-A AND ALLOW THIS PETITION AND CONSEQUENTLY RESTORED THE MISC.PETN.NO.889/2006. THIS PETITION, COMING ON FOR PRELIMINARY HEARING B-GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
Legal Reasoning
Digitally signed by SUMA B N Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:10207 WP No. 53826 of 2018 CORAM: HON'BLE MR JUSTICE M.G.S. KAMAL ORAL ORDER Petitioner who was the appellant in Case No.MA (EAT) No.58/1992 on the file of Educational Appellate Tribunal, Bengaluru City had sought execution of the order passed in the said appeal by filing an execution petition in Execution Petition No.Ex.No.889/2006 on the file of VI Additional City Civil and Sessions Judge, Bengaluru. 2. That the said execution petition was dismissed for non-prosecution by order dated 10.12.2015. Seeking to set aside the said order, petitioner herein had filed an application under Order 9 Rule 4 r/w Section 151 of Code of Civil Procedure, which came to be dismissed by the impugned order dated 09.10.2018. Aggrieved by the same, the petitioner is before this Court. 3. Counsel for the petitioner taking this Court through the averments made in the petition and the documents enclosed therewith submits that the reasons assigned by the Trial Court for rejection of the application are apart from the illegal are unsustainable. In that he refers to para 12 of the - 3 - NC: 2025:KHC:10207 WP No. 53826 of 2018 impugned order wherein the Trial Court has concluded that the very decree which is sought to be executed by the petitioner had become unenforceable, even on the day when it was dismissed for non-prosecution by efflux of period of 12 years and that the petitioner has not shown sufficient reason for restoration of the Executive Petition. He submits it is only for the said reason the Executing Court has rejected the application. Hence, seeks for allowing of the petition. 4. Learned counsel for the respondent/judgment debtor on the other hand relying upon the judgment of the Apex Court in the case of Damodaran Pillai and Others Vs. South Indian Bank Ltd., reported in AIR 2005 SC 3460 vehemently submits that the issue arising in the present writ petition is fully covered by the aforesaid judgment of the Apex Court. He submits that under identical fact situation of the matter, when the execution petition had been dismissed for non prosecution, an application under sub-rule (3) of Rule 106 of Order 21 of CPC had been filed after expiry of more than 8 years and that the Apex Court taking note of non application of provision of Section 5 of the Limitation Act, and in view of the language employed in the Rule 106 of order 21 of CPC., - 4 - NC: 2025:KHC:10207 WP No. 53826 of 2018 requiring filing of any application within 30 days, had declined to restore the same. Hence, he submits, that present petition having been filed beyond the said period of 30 days was clearly not maintainable. Hence, seeks for dismissal of the petition. 5. In response, learned counsel for the petitioner refers to Karnataka Amendment to the provisions of Rules 104 and 105 of Order 21 of CPC, and points out that the judgment of the Apex Court referred to by the learned counsel for the respondent is distinguishable. In that there is an amendment effected by the State of Karnataka making provisions of Section 5 of the Limitation Act specially applicable, to the application to be filed under sub-rule (1) of Rule 105 of Order 21 of CPC. Hence, seeks for allowing of the petition. 6. Heard. Perused the records. 7. Relevant dates for the purpose of present petition are that; the order sought to be executed has been passed by the Education Appellate Tribunal on 17.02.2001. Execution Petition has been filed on 22.04.2006. The same came to be dismissed for non-prosecution on 10.12.2015. Application - 5 - NC: 2025:KHC:10207 WP No. 53826 of 2018 seeking restoration of the same under Order 9 Rule 4 of CPC was filed on 21.5.2016, which is after lapse of 120 days. 8. The Trial Court though has taken note of the fact that application under Section 151 of CPC would have been sufficient, however as seen at para 12 of the impugned order, has proceeded to dismissed the application for restoration, solely on the ground that even on the date when the execution petition was dismissed for non-prosecution, the period of 12 years, being the period for excitability of the order, had expired and that no purpose would therefore be served even if the matter was restored. Besides the Trial Court has also found that the petitioner has not furnished sufficient reason for seeking restoration of the same. 9. The aforesaid reasoning of the Executing Court is erroneous in as much as the period of 12 year of limitation is for filing of petition seeking execution of the Decree. If the execution petition is filed, the limitation period for 12 years would stop and continues until the execution is concluded in the manner known to law. Therefore, the reason assigned by the Executing Court at para 12 is unsustainable. - 6 - NC: 2025:KHC:10207 WP No. 53826 of 2018 10. However, the intervening factor in this case is the dismissal of the execution petition for non-prosecution. All that the Executing Court was required to see whether the petitioner herein had made out sufficient grounds for restoration of the execution petition. 11. No doubt an application under Order 9 Rule 4 of the CPC has been filed, instead of filing an application under Rule 105 of Order 21 of CPC which is only a procedural lapse. Nonetheless since inherent powers also invoked, the same could have been read in conjunction with Rule 105 of Order 21 of CPC. The Executing Court ought to have examined the reasons assigned for non-prosecution of the execution proceedings. 12. The only contention urged by the counsel for the respondent is by placing reliance on the judgment of the Apex Court in the case of Damodaran Pillai (supra). As pointed out by counsel for the petitioner, the said judgment is distinguishable in the light of the Karnataka High Court Amendment effected to provisions of Rules 104 and 105 of Order 21 of CPC. While in the judgment passed by the Apex - 7 - NC: 2025:KHC:10207 WP No. 53826 of 2018 Court there was no provision for applicability of provisions of Section 5 of the Limitation Act. It is under that unique circumstance of the case, The Apex Court held that in the absence of applicability of provision of Section 5 of CPC, the period prescribed under Rule alone has to be applied and nothing else. 13. In the instant case following amendment is effected to Rules 104 and 105 of Order 21 of CPC by the Karnataka High Court Amendment. "KARNATAKA HIGH COURT AMENDMENT Rules 104 & 105 Added by Noti. No. ROC No.2526/1959, dt.9-2-1967 (w.e.f. 30-3- 1967): 104. (1) The Court before which an application under any of the foregoing rule 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 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 respondent to whom notice has been issued by the Court does not appear, the Court may hear the application exparte and pass such order as it thinks fit. Explanation: An application referred to in sub-rule (1) of this rule includes a claim or an objection made under Rule 58 of this Order - 8 - NC: 2025:KHC:10207 WP No. 53826 of 2018 105. (1) The applicant against whom an order is made under sub-rule (2) of Rule 104 or a respondent against whom an order is passed ex parte under sub-rule (3) of the same rule or under sub-rule (1) of Rule 23 of this Order, may apply to the Court to set aside the order and if he satisfies the Court that there was sufficient cause for this 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 thanks fit and shall appoint a day for the 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 opposite party. (3) An application under sub-rule (1) of this rule shall be made within 30 days of the date of the order, or where in the case of an ex-parte order the notice was not duly served, the date when the applicant had knowledge of the order. (4) The provisions of Section 5 of the Limitation Act, 1963 shall apply to applications under sub-rule (1)." (emphasis added) 14. Perusal of the aforesaid amended provisions would make it clear that the provision of Section 5 of the Limitation Act has been made applicable to the applications made under sub-rule (1) of Rule 105 of Order 21 of CPC. In that view of the matter, the petitioner in the application seeking restoration of a petition which is dismissed for non-prosecution is entitled to - 9 - NC: 2025:KHC:10207 WP No. 53826 of 2018 give a sufficient reasons, for the delay in seeking restoration of the matter. 15. Though reasons have been assigned by the petitioner for the delay in filing the application, the Trial Court is required to ascertain the veracity or otherwise of the same. In that view of the matter, though a separate application is not filed seeking condonation of delay, nonetheless the Trial Court is required to ascertain the reasons assigned for the delay in filing the application. 16. It is for this reason the matter is relegated to the Executing Court by setting aside the impugned order. The Executing Court shall reconsider the application filed by the petitioner specifically with reference to the Karnataka High Court amendment to the Rules 104 and 105 of Rule 21 of the CPC.
Decision
Petition is accordingly disposed of. SD/- (M.G.S. KAMAL) JUDGE AP List No.: 1 Sl No.: 7