1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Appeal Against Order No. 9/2010 Prakash Vithalrao Wanjari ..vs.. M/s. Sundaram Finance Ltd and ors. Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's orders Coram: R. K. Deshpande, J. Date of reserving the Order :- March 18, 2010 Date of pronouncing the order:- March 25,2010 1. This appeal against order has been preferred under Order XLIII rule 1 (ja) of the Code of Civil Procedure by the judgment debtor, challenging order dated 07.12.2009 passed by leaned Principal District Judge, Nagpur below Exh.-69 and 70 in Regular Darkhast No. 183/2007. By an order below Exh.-69 dated 07.12.2009, the learned District Judge has rejected the application filed by the present appellant styled as an “Application for condonation of delay caused in filing an application for review of order dated 15.09.2009 (Exh.-54) and an application under Order XXI Rule 106 of the Code of Civil Procedure.” By an order passed below Exh.-70, the learned District Judge has rejected an application filed by the present appellant/judgment debtor styled as an “Application for review of order dated 15.09.2009 (Exh.-54) under Section 114 read with 2 Section 151 of the Code of Civil Procedure and under Order XXI Rule 106 of the Code of Civil Procedure.” 2. Mr. M. P. Lala, the learned counsel for the decree holder, who is respondent no. 1 herein, has raised a preliminary objection as to maintainability of the instant appeal against order. According to him, the orders below Exh.-69 and 70 dated 07.12.2009, have been passed in Regular Darkhast No. 183/2007 rejecting application for condonation of delay in filing application for review of order dated 15.09.2009 (Exh.-54) and also application for review of the said order dated 15.09.2009 (Exh.- 54), which was passed under Order XXI Rule 77 of the Code of Civil Procedure. According to him, the said order passed under Order XXI Rule 77, has not been made appealable under the provisions of Order XLIII Rule 1(ja) of the Code of Civil Procedure. Hence, the instant appeal is not maintainable. 3. As against this, Mr. Shukla, the learned counsel for the judgment debtor, has urged that order dated 15.09.2009 (Exh.-54) has been passed under Order XXI Rule 92 of the Code of Civil Procedure, confirming the auction which took place on 25.08.2009. The orders impugned dated 07.12.2009, being 3 passed rejecting the applications below Exh.-69 for condonation of delay caused in filing the review application and Exh.-70, which is an application for review of the order dated 15.09.2009, the present appeal against order is maintainable under Order XLIII Rule 1 (ja) of the Code of Civil Procedure. 4. In view of above, the question to be decided is; whether order dated 15.09.2009 below Exh.-54 was passed under Order XXI Rule 77 or under Order XXI Rule 92? If it is an order under Order XXI Rule 92, then this appeal is maintainable. 5. Such of the facts, as are necessary to decide the preliminary objections, are stated below. The appellant is the judgment debtor, the respondent no.1 is decree holder. The respondent no.2 is an intervenor and the respondent no.3 is an auction purchaser. The parties shall hereinafter be referred to as per their original status namely the appellant as “judgment debtor” and respondent no.1 as “decree holder”, respondent no.2 as “intervenor” and respondent no.3 as “auction purchaser.” 6. In Arbitration Proceeding no. SK/SF/02/06, the learned District Judge, Nagpur passed an award dated 17.07.2006, for an 4 amount of Rs. 2,67,889/-, in favour of the decree holder. The decree holder filed execution proceedings bearing R.D.No. 183/2007, before the District Judge at Nagpur, for recovery of Rs.2,67,857/-. In execution proceedings, there was an order of attachment of two trucks bearing No.MH-40/5234 and MH- 40/5334. These two trucks were hypothicated to the intervenor- respondent no.2. On 19.03.2008, an order was passed allowing application Exh.-18 for sale of aforesaid two trucks. Auction took place on 07.10.2008. However, the said auction was cancelled and a fresh auction was ordered on 23.03.2009, at the instance of the intervenor. Thereafter, again an order was passed for auction of the said trucks on 10.07.2009. The auction was fixed on 25.08.2009. Auction was held on 25.08.2009 and the two trucks were sold out for Rs.6,10,000/- to the auction purchaser- respondent no.3. 7. The decree holder, thereafter, filed an application dated 15.09.2009 (Exh.-54) for confirmation of sale under order XXI Rule 92 and for grant of sale certificate under order XXI Rule 24 of the Code of Civil Procedure. The learned District Judge passed an order below Exh.-54 on 15.09.2009 itself, to hand over the trucks in possession of the auction purchaser by decree 5 holder and to issue the certificate for the same. 8. The judgment debtor, thereafter, filed an application styled as, “Application for cancellation of auction and not to hand over the vehicle to the auctioneer/purchaser.” This was filed on 23.09.2009. It was prayed that the sale of auction dated 07.10.2008 in respect of two trucks be not confirmed and no sale certificate be issued. On 07.11.2009, an application under Section 151 of the Code of Civil Procedure was filed to correct the prayer clause of application Exh.-56 for cancellation of auction and instead of auction dated 07.10.2008, a prayer was made for cancellation of auction dated 25.08.2009. 9. On 10.11.2009, the judgment debtor filed another application Exh.-69, styled as “Application for condonation of delay for filing review application of order dated 15.09.2009 and application under order XXI Rule 106 of the Code of Civil Procedure”. It was prayed that 26 days delay was caused in filing review application against order dated 15.09.2009 passed below Exh.-54, in Regular Darkhast No. 183/2007 and hence delay may be condoned. The judgment debtor filed another application Exh.70, for review styled as “Application for review 6 under Section 114 read with Section 151 of the Code of Civil procedure and under order XXI Rule 106 of the Code of Civil procedure.” It was prayed that order dated 15.09.2009 passed below Exh.-54 in Regular Darkhast No. 183/2007 be reviewed. 10. Both the aforesaid civil applications at Exh.-69 and 70 were rejected by learned Principal District Judge, Nagpur by his order dated 07.12.2009. While deciding the application for condonation of delay, it was observed that order dated 15.09.1997 passed confirming the auction under Order XXI Rule 77 of the Code of Civil Procedure. Both the applications namely Exh.-69 and 70 were rejected on the ground that the same were not maintainable. 11. The present appeal, styled as one under Order XLIII Rule 1 (ja) of the Code of Civil Procedure has been filed, challenging orders dated 07.12.2009 passed below Exh.-69 and Exh.-70 by the leaned District Judge at Nagpur in R. D. No. 183/2007. Mr. Shukla, the learned counsel for the appellant submitted that order dated 15.09.2009 passed below Exh.-54 in R.D. No. 183/2007 was without providing any opportunity to the appellant. The appellant was not served. They were also not 7 given copy of the application. The application was filed on 15.09.2009 for confirmation of sale under Order XXI Rule 92 of the Code of Civil Procedure and the order was passed on the very same day. He urged that it was virtually an ex parte order passed under Rule 105 (3) of Order XXI of the Code of Civil Procedure. He further submits that in view of this factual background, applications at Exh. 69 and Exh.-70, were filed. Applications were shown as one under Order XXI Rule 106 of the Code of Civil Procedure for setting aside ex parte order. 12. No doubt, order dated 15.09.2009 was passed on the application of decree holder styled as one under Order XXI Rule 92 of the Code of Civil Procedure (Exh.-54). However, it was confirmation of sale of moveable property, which was sought. Hence, Rule 92 of Order XXI was not attracted as it pertains to immovable property. It was Rule 77 of Order XXI of the Code of Civil Procedure, which was attracted. Hence, though the decree holder styled it as an application under Order XXI Rule 92, it will have to be treated as one under Order XXI Rule 77, which was attracted. In view of this, order dated 15.09.2009 passed below Exh.-54 will have to be treated as one under Order XXI Rule 77, which relates to confirmation sale of movable property, the 8 trucks in this case. 13. It is true that the title of the applications Exh.-69 and 70 indicate that the appellant/judgment debtor has tried to invoke jurisdiction of the Civil Court under Order XXI Rule 106 of the Code of Civil Procedure. Both these applications were filed on 10.11.2009 whereas the order, of which review was sought, was passed on 15.09.2009 below Exh.-54. Rule 106 (3) of Order XXI prescribed the period of limitation of 30 days for filing the application for setting aside ex parte order passed under Rule 105 (3) from the date when the applicant gets knowledge of the order. The trial Court has recorded a finding in the impugned order dated 07.12.2009 that the parties were present on 15.09.2009 and thus, they had knowledge of the passing of the order on the very same day. In spite of this, application Exh.-70 was filed beyond the period of 30 days. Hence, the applicant filed an application Exh.-69 for condonation of delay caused in filing review application Exh.-70. 14. Mr. Lala, the learned counsel for the decree holder has submitted that provisions of the Limitation Act are not applicable to the execution of proceedings; more particularly to 9 the application Under Rule 106 (3) of Order XXI. He relied upon decision of the Apex Court in Damodaran Pillai and ors. ..vs.. South Indian Bank Ltd.; (2005) 7 SCC 300. Para 16 of the said judgment, which is relevant is reproduced below. “16. An application under Section 5 of the Limitation Act is not maintainable in a proceeding arising under Order 21 of the Code. Application of the said provision has, thus, expressly been excluded in a proceeding under Order 21 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.” From the law laid down in the judgment of the Apex Court it is apparent that the provisions of the Limitation Act are not applicable and the application styled as the one under Order XXI Rule 106 of Code of Civil Procedure being filed by the appellant beyond the period of 30 days, was not at all maintainable. In view of this, the contention of Mr. Shukla, the learned counsel for the appellant, that the application should be treated as the one under Rule 106(3) of Order XXI of the Code of Civil Procedure needs to be rejected. 15. The net result of the aforesaid discussion is that the 10 order dated 15.09.2009 passed below Exh.-54, was under Order XXI Rule 77 of the Code of Civil Procedure and not under Order XXI Rule 92 of the Code of Civil Procedure. This appeal against order is filed as one under Order XLIII Rule 1 (ja) of the Code of Civil Procedure, which does not include order passed under Rule 77 of the Order XXI. Hence, this appeal is not maintainable and it is dismissed. However, this dismissal shall not come in the way of appellant to prefer any other proceedings as are permissible to him in law. J UDGE kahale