* THE HON’BLE SRI JUSTICE V.V.S. RAO THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P.S.NARAYANA + CIVIL REVISION PETITION No.116 of 2007 % 14-9-2009 Between: Ch. Krishnaiah, S/o.Balaramaiah ..... PETITIONER AND Ch. Prasada Rao, S/o.Jwala Ramaiah .....RESPONDENT Counsel for the Appellant: Sri M.Venkatanarayana Counsel for the Respondent: Sri P.Sridhar Reddy < Gist: > Head Note: ? CITATIONS: 1. (2005) 7 SCC 300 : AIR 2005 SC 3460 2. 2004(6) ALT 17 3. 2004(2) ALT 764 4. AIR 1931 All 567 (FB) 5. AIR 1969 Guj 18 6. AIR 1971 Bom 21 (DB) 7. AIR 1981 MP 160 (DB) THE HON’BLE SRI JUSTICE V.V.S. RAO THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P.S.NARAYANA CIVIL REVISION PETITION No.116 of 2007 September 14, 2009 Between: Ch. Krishnaiah, S/o.Balaramaiah … Petitioner and Ch. Prasada Rao, S/o.Jwala Ramaiah … Respondent THE HON’BLE SRI JUSTICE V.V.S. RAO THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P.S.NARAYANA CIVIL REVISION PETITION No.116 of 2007 ORDER: (Per Hon’ble Sri Justice VVS Rao) The following background of this case is not in dispute. Petitioner herein suffered a money decree for Rs.40,495.08 with subsequent interest at stipulated rate in O.S.No.614 of 1996 dated 26.4.1999 on the file of the Court of I Additional Junior Civil Judge, Nellore. He did not satisfy the decree. He unsuccessfully preferred appeal to the Court of I Additional District Judge, Nellore, which was dismissed on 30.1.2003. Thereafter, respondent filed execution petition being E.P. No.446 of 2003 under Order XXI Rules 37 and 38 of Code of Civil Procedure, 1908 (CPC) for arrest of defaulting Judgment Debtor (J.Dr). It appears that executing Court passed ex parte order on 02.5.2006 ordering his arrest. He then filed interlocutory application under Order XXI Rule 106(3) of CPC, to set aside ex parte order dated 02.5.2006 contending that he has no means to satisfy the decree and that his arrest cannot be ordered. He also filed another interlocutory application (unnumbered) to condone delay of 26 days in filing the application to set aside ex parte order. Learned executing Judge relied on decision of Supreme Court in Damodaran Pillai v South Indian Bank Limited[1] and dismissed application for condonation of delay. In the process, executing Court did not consider two decisions of this Court in State Bank of India v Muffar Ali Khan[2] and Sale Ranga Swamy v Sub Collector, Kurnool[3], wherein it was held that Section 5 of Limitation Act, 1963 (hereafter, Limitation Act) would also be applicable to an application filed under Order XXI Rule 106 of CPC. Aggrieved by the order of executing Court dated 17.10.2006, petitioner/J.Dr filed this civil revision petition. The matter initially came up before one of us (P.S.Narayana,J). By order dated 12.7.2007, our learned Brother referred matter to a Division Bench observing as follows. In the light of the decision of the Apex Court, the question to be decided is whether the decisions of two learned Single Judges of this Court and the views expressed in the said decisions are to be held to be good law in the light of certain distinguishing features which had been pointed out by the learned counsel for the revision petitioner or the ratio of the Apex Court to be followed irrespective of the hardship, may be the question of general importance, since such applications would be coming up before different Courts in State of Andhra Pradesh almost every day. In view of the same, without expressing any further opinion on this aspect, especially in the light of the subsequent Amending Legislations to the Code of Civil Procedure in the year 1999 and 2002 as well, this Court is inclined to refer the matter to be decided by an appropriate Division Bench. The matter then went before Division Bench comprising their Lordships B.Prakash Rao and G.Bhavani Prasad,JJ. By order dated 29.8.2008, they opined that authoritative pronouncement is required by a Full Bench and observed as follows. The controversy involves consideration of various legal aspects and incidental principles, which arise in the applicability of the said provisions, vis-à-vis, the provisions of the amending Act of the Code of Civil Procedure and the distinguishing facts and circumstances existing in both the cases, i.e., in Damodaran Pillai and others v South Indian Bank Limited and as well in the case of Division Bench of this Court and also the correctness of the view taken by the Division Bench. In view of the aforesaid reasons and having regard to the importance of the question, an authoritative pronouncement can be made by a Full Bench. Before us, it has been urged by petitioner that though Section 5 of Limitation Act excludes an application under any of the provisions of Order XXI of CPC, by reason of amendment by the High Court of Andhra Pradesh under Section 122 of CPC adding sub-rule (4) in Rule 106 of Order XXI, an application for condition of delay under Section 5 of Limitation Act in filing such an application would be maintainable for condonation of delay. He therefore would contend that decisions of this Court in Ranga Swamy (supra) and Muffar Ali Khan (supra) lay down correct law. On the contrary, learned Counsel for respondent points out that under Order XXI Rule 106(3) of CPC, application to set aside ex parte order under Order XXI Rule 106(1) has to be filed within thirty (30) days from the date of order or within thirty days from the date when applicant had knowledge of order. Any application filed beyond thirty days as contemplated therein would not be maintainable and Section 5 of Limitation Act has no application. He also points out that amendment made by High Court of Andhra Pradesh vide Andhra Pradesh Gazette notification dated 30.11.1992 has been rendered unenforceable in view of Code of Civil Procedure (Amendment) Act, 1999 (hereafter, 1999 Act) and Code of Civil Procedure (Amendment) Act, 2002 (hereafter, 2002 Act). In view of the reference to this Bench, the only question to be addressed is whether Order XXI Rule 106(4) of CPC is enforceable in State of Andhra Pradesh? The controversy revolves round applicability of Section 5 of Limitation Act to an application under Order XXI Rule 106(1) of CPC. Section 5 of Limitation Act[4] is an enabling provision and is essentially and predominantly concerned with regulating processual aspects of adjudication rather than relevant substantive law involved in the litigation. As enabling provision, Section 5 in plain terms empowers Civil Court to condone the delay in preferring appeal or making application beyond prescribed period, if appellant or applicant satisfies Court that he had sufficient cause for not preferring appeal or making application within prescribed period. Section 5 of Limitation Act in its parenthesis between words “any application” and “may be admitted”, contains prohibition to the effect that, “other than an application under any of the provisions of Order XXI of CPC”. Thus Section 5 of Limitation Act has no application to execution proceedings under Order XXI of CPC. In other words, Section 5 of Limitation Act does not enable or empower Civil Court (executing Court) to condone delay in filing execution application beyond prescribed period. The effect and purport of Section 5 of Limitation Act cannot be fully appreciated without making reference to Sections 29 of Limitation Act. Section 29 of Limitation Act is a saving clause. An analysis of the save would show that (i) Limitation Act shall not affect Section 25 of Indian Contract Act, 1872, (ii) If a special law or local law prescribed period of limitation different from the period prescribed as a schedule of Limitation Act, Section 3 applies as if period prescribed by special law is prescribed by the Schedule and in such a case Sections 4 to 24 of Limitation Act would apply for the purpose of determining the period of limitation; (iii) if a special law or local law expressly excludes applicability of Sections 4 to 24, Section 3 of Limitation Act and schedule under Limitation Act shall not apply; (iv) Unless specifically provided for by itself, Limitation Act has no application to law with respect to marriage and divorce. This analysis of subsections (1), (2) and (3) of Section 29 of Limitation Act would show that all the proceedings of Limitation Act are applicable to a special law or local law unless they are expressly made inapplicable to such special law or local law. Section 122 of CPC[5] empowers High Court to make Rules regulating their own procedure and procedure of the Civil Courts and while doing so may annul, alter or add any of the Rules under First Schedule (Order I to Order LI and Appendix A to Appendix H). In exercise of these powers, High Court of Andhra Pradesh has amended or substituted or added various Rules in various Orders. In 1992 vide their publication being ROC No.2475/So/91, High Court added Sub- rule (4) after Sub-rule (3) of Rule 106 of Order XXI of CPC that the provisions of Section 5 of Limitation Act shall apply to all applications under Sub-rule (3). After amendment, Rule 106 of Order XXI of CPC reads as under. Order XXI Rule 106. Setting aside orders passed 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 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). By reason of the amendment made by Andhra Pradesh High Court in 1991 sub-rule (4) has been added in Rule 106 of Order XXI of CPC. As a result of this, an application to set aside an ex parte order passed under Rule 105(2) can be filed even after thirty days by seeking condonation of delay as provided for by Rule 106 (4) of Order XXI of CPC. In Damodaran Pillai (supra), Supreme Court was dealing with a case from Kerala. Respondent therein; a Bank – obtained a decree for payment of money and filed execution petition. It was dismissed for default. An application was filed to set aside the same beyond period of limitation prescribed under Order XXI Rule 106 (3) of CPC. Lower Court allowed application rejecting plea of J.Dr that the application is beyond limitation. Revisional Court confirmed the order. Before apex Court J.Dr argued that Section 5 of Limitation Act cannot be made applicable to applications filed under Order XXI Rule 106(3) of CPC. Supreme Court while rejecting the plea of D.Hr that Civil Court can exercise inherent powers to condone delay even if Section 5 of Limitation Act is not made applicable, allowed appeal holding that Section 5 of Limitation Act has no application to petitions filed under Order XXI Rule 106(3) of CPC. From a reading of reported judgment, it becomes clear that there was no amendment to Order XXI Rule 106 as is the case in State of Andhra Pradesh. As noticed supra, in 1991, Andhra Pradesh High Court inserted sub-rule (4) to Rule 106 of Order XXI of CPC making Section 5 of Limitation Act applicable, to application filed under sub-rule (1) of Rule 106. I n Sale Ranga Swamy (supra), learned Single Judge of this Court after referring to amendment made by Madras High Court and Andhra Pradesh High Court to Rule 106 by way of inserting sub-rule (4) thereof, came to the conclusion that the Court can invoke principles of Section 5 of Limitation Act to condone delay in appropriate cases even though under Rule 106(3), an application to set aside ex parte order has to be filed within thirty days. In Muffar Ali Khan (supra), another learned Single Judge followed Sale Ranga Swamy (supra) and held that executing Court can entertain application under Section 5 of Limitation Act, while dealing with applications for setting aside ex parte orders passed under Rule 105 of Order XXI of CPC. Damodaran Pillai (supra) is a case decided based on Order XXI Rule 106 of CPC as it existed without any amendment by Kerala High Court. In Sale Ranga Swamy (supra) and Muffar Ali Khan (supra), two learned Single Judges of this Court considered effect of amendment made by Andhra Pradesh High Court in 1992 and held that an application under Section 5 of Limitation Act would lie. We do not find any strong reasons to deviate from the view expressed by two learned Single Judges in the decisions referred to herein above. A reading of Section 122 of CPC leaves no doubt that in exercise of that power the High Court can even annul, alter or add Rules in the First Schedule. To our mind – at least in the field of civil judicial procedure; power conferred on High Court under Section 122 of CPC is greater than the power to amend provisions of CPC. Historically it is recognized that High Court of a State shall exercise powers of supervision and superintendence over all the courts and Tribunals subordinate to it. This power has been recognized by Constitution of India by enacting Articles 225 and 227. Under Article 227(2)(b) power is conferred on High Court to make and issue general rules and prescribe forms for regulating the practice and proceedings of subordinate courts. Therefore the power conferred on High Court to annul, alter or add the Rules in First Schedule to CPC is not an ordinary delegated power. It is the power referable to the power conferred on High Court by Constitution itself. In exercise of such power, it may be reiterated, High Court can even annul any of the Rules in First Schedule or add or alter any such Rules. Section 122 of CPC, which remained as it, without any substantial amendments since 1908 has been subject matter of interpretation by various High Courts in India. In all these, it is categorically held that power of High Court under Section 122 to annul, alter or add any of the Rules in First Schedule is absolute power and that even if such a Rule is in conflict with previous existing rule, it must be by implication deemed to have been annulled or/and altered by new rule. We just need to mention some of these authorities: Shakir Hussain v Chandoolal[6], United Industries v M/s.Dalwadi and Co.,[7], Menkabai v Manohar[8] and Devendra Kumar v Jaidayal[9] That takes us to the other submission of learned Counsel for respondent. He submits that by reason of Section 32(1) of 1999 Act and Section 16 of 2002 Act, the amendment made by Andhra Pradesh High Court by way of inserting Order XXI Rule 106(4) cannot be enforced. This submission is misconceived. Section 32(1) of 1999 Act is to the effect that, “any amendment made or any provision inserted to principal Act by a High Court insofar as the same is consistent with the provisions of principal Act as amended thereby stand repealed. Section 16(1) of 2002 Act is also in similar terms”. There is no dispute that either 1999 Act or 2002 Act do not introduce any amendments in Order XXI Rule 106 of CPC. Therefore the question of Andhra Pradesh High Court amendment being inconsistent with amended provision does not arise. Section 32 of 1999 Act and Section 16 of 2002 Act render only such amendments made by High Court inconsistent with the provisions of principal Act as modified by amendment Act ineffective. In view of admitted position that both these amendment Acts do not amend the provisions of principal Act insofar as Order XXI Rule 106 of CPC is concerned, these two provisions have no effect on the amendment made by Andhra Pradesh High Court or to say in other words, they do not in any manner affect Andhra Pradesh amendment as promulgated by High Court. We may refer to two precedents on this aspect. I n Devendra Kumar (supra), Division Bench of Madhya Pradesh High Court considered question whether in view of Section 97 of CPC (Amendment) Act, 1976, High Court amendment in sub-rule (2) of Rule 11 of Order XX of CPC stood repealed. Answering the question in the negative, it is laid down as follows. A reading of this section therefore clearly indicates that what is contemplated is that so long as rules are not framed, altered or modified by the respective High Courts in accordance with the scheme of this Chapter the rules enacted in the First Schedule shall have force and once they are altered, modified or annulled in accordance with the scheme of this Chapter they shall replace the rules as enacted in the First Schedule. It is therefore clear that what is contemplated by the legislature is that the rules can be framed in accordance with this Chapter and these rules may even annul, modify or alter the rules which have been enacted in the First Schedule and so long as the rules are not framed in accordance with this Chapter the rules enacted in the First Schedule shall be in force. It the legislature intended that the rules framed in accordance with this Chapter shall not be inconsistent with the rules enacted in the First Schedule, the language in Section 121 and 122 would not have been ‘annul, alter or add to all or any of the rules’. It therefore even contemplates change of all the rules in the First Schedule and it is in the context of this language used in Sections 121 and 122 that the language in Section 128 has to be understood. Madhya Pradesh High Court also took the view that principal Act referred to in repeal provision does not include Schedule to CPC. Relevant observations are as follows. It is therefore clear that the phrase ‘principal Act’ occurring in the last sentence of Section 97(1) refers to sections of the Code and not to the schedule and it is in this context we have to examine sub-rule (2) of Rule 11 of Order XX as amended by the High Court prior to the Amendment Act of 1976. It is not in dispute that if the phrase ‘principal Act’ occurring in the last sentence of Section 97 (1) means the sections part of the Civil Procedure Code only then there is no inconsistency and therefore it could not be held that sub-rule (2) of Rule 11 of Order XX as amended by the Madhya Pradesh High Court is invalid. Thus our answer to the question referred to us is that view of Section 97(1) of the Amendment Act of 1976 the amendment made in sub-rule (2) of Rule 11 of Order XX of the Civil Procedure Code 1908 amended by the Madhya Pradesh High Court does not stand repealed and it holds as a valid law even now. Learned Single Judge of this Court in Sale Ranga Swamy (supra) also considered effect of Section 32 of 1999 Act and Section 16 of 2002 Act and made the following observations. It could be seen from the above that no attempt was made to amend Rule 106 of Order XXI of the Code of Civil Procedure. … … … However, both the Amending Act of 46 of 1999 and 22 of 2002 were brought into force with effect from 1.7.2002. … … … From the above, it could be seen that Rule 106 of Order XXI 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 remains unsettled and very much in tact. Therefore, we hold that notwithstanding the repeal provisions in 1999 and 2002 amendments to CPC, Order XXI Rule 106(4) of CPC as inserted by the High Court in exercise of powers under Section 122 of CPC enables a party to proceedings to file application under Section 5 of Limitation Act seeking condonation of delay in filing an application to set aside ex parte order passed under Order XXI Rule 106(1) of CPC. Accordingly we allow the civil revision petition and set aside order of learned I Additional Junior Civil Judge, Nellore, in C.F.No.13960 of 2006 dated 17.10.2006. Learned trial Judge is directed to reconsider application and pass appropriate orders in accordance with law. The parties shall bear their own costs of this revision petition. _______________ (V.V.S.RAO,J) ___________________ (N.V.RAMANA,J) _____________________ (P.S.NARAYANA,J) September , 2009 NOTE: L.R. Copy be marked. (By order) YS [1] (2005) 7 SCC 300 : AIR 2005 SC 3460 [2] 2004(6) ALT 17 [3] 2004(2) ALT 764 [4] Section 5. Extension of prescribed period in certain cases:-– Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period. [5] Section 122. 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 add to all or any of the rules in the First Schedule. [6] AIR 1931 All 567 (FB) [7] AIR 1969 Guj 18 [8] AIR 1971 Bom 21 (DB) [9] AIR 1981 MP 160 (DB)