IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1332 of 2006 MAHABIR SAH son of late Narsingh Sah, resident of village & P.O. Bachhauta, P.S. Morkahi, District Khagaria, … .. Defendant No. 1/Appellant (Judgment-debtor)- Petitioner Versus 1. BIBI JUBEDA KHATOON wife of late Salim, 2. Md. Sattar, 3. Md. Wahab, both sons of late Salim, 4. Munni Daughter of late Salim, all minor sons and daughter of late Salim under guardianship of Jubeda Khatoon, the mother natural guardian and next friend, (O.P. No. 4 placed under D.R. guardian Advocate in view of order dated 26.11.2008) all residents of village & P.O. Bachhauta, P.S. Morkahi, District Khagaria … (Decree Holder) Opposite Party For the Petitioner: Mr. Dronacharya, Advocate For O.P. Nos. 1 to 3: M/s Ranjeet Kumar Singh-2 and Pawan Kumar Singh, Advocates For O..P. No. 4: Mr. Neeraj Singh, Advocate. ----------- 14 08.02.2010 Heard learned counsel for the parties. This civil revision is directed against the order dated 09.06.2006 passed by the court of the Sub Judge, Khagaria in Miscellaneous Case No. 3 of 2004, whereby the petition filed under Order IX Rule 9 of the Code of Civil Procedure (hereinafter to be referred to as “the Code”) for restoration of Execution Case No. 1 of 1997 has been allowed in favour of the contesting opposite party 2 nos. 1 to 4. It had been submitted on behalf of the petitioner that if the impugned order had in case been passed in favour of the petitioner, then the execution case could have remained dismissed and the matter could have been decided finally in favour of the petitioner, thus, it had been urged that this civil revision would be maintainable in view of the proviso to Section 115(1) of the Code. Learned counsel for the opposite parties could not dispute the aforesaid proposition. Thus, I proceed to consider the case on its merit. Execution Case No. 1 of 1997 was filed on 15.02.1997 for execution of the decree drawn in Title Suit No. 26 of 1982. The decree was upheld in Title Appeal No. 30 of 1989 and Second Appeal No. 32 of 2002 preferred by the petitioner has also been dismissed for default for non-compliance of the order passed by this Court. The execution case concerned was admitted on 27.02.1997 and notices were issued to the judgment debtors, who appeared on 04.04.1998 and the date was fixed for the hearing of the case. However, since repeatedly none had appeared on behalf of the decree- 3 holders-opposite party nos. 1 to 4, the execution case was dismissed for default on 01.04.2000. The decree holders- opposite parties filed Miscellaneous Case No. 3 of 2004 for restoration of the execution case concerned. The court concerned after hearing in detail and upon examination of the witnesses came to the conclusion that there were sufficient grounds, which prevented the decree-holders from both, from appearing at the date fixed and also from filing a case for restoration within the stipulated time. As such, the miscellaneous case was allowed after imposition of cost of Rs. 250/- and the Execution Case No. 1 of 1997 was restored after setting aside the order of dismissal dated 01.04.2000. Learned counsel appearing for the judgment debtor-petitioner submitted that the provision for hearing of the execution case has specifically been provided under Rule 105 of Order XXI of the Code. Sub-rule (1) of Rule 105 of Order XXI of the Code empowers the court to fix a date for the hearing of the application filed under the provisions contained in the Order XXI of the Code and if on the date fixed the applicant does not appear, the court under sub-rule (2), may make an order to the effect that the 4 application be dismissed. For setting aside such order there is provision under Rule 106 of Order XXI of the Code empowering the court to set aside such order of dismissal of the case for want of prosecution on being satisfied that there was sufficient cause for non-appearance of the concerned parties when the application was called upon for hearing. However, under sub-rule (3) of Rule 106 of Order XXI of the Code it has been specifically provided that such application filed under sub-rule (1) of Rule 106 of Order XXI of the Code shall be made within 30 days from the date of order or in a case where an ex parte order is there and notice was not duly served then within 30 days from the date when the applicant had knowledge of the order. It is submitted on behalf of the petitioner that this case does not come under the second part of the aforesaid provision as it is not an ex parte order in favour of the applicant. However, it would be well covered by first part which provides that the concerned application shall be made within 30 days from the date of passing of the order. Further contention is that there being no specific provision in Order XXI for the purpose of condoning the 5 delay, the court concerned did not have any authority or jurisdiction to condone the delay and set aside the order concerned, after a delay of about four years. In this context, attention of this Court has also been drawn to the provisions as contained in section 5 of the Limitation Act, 1963, which is a provision for extension/condonation of the period of delay in certain cases. Learned counsel submits that the bare perusal of the provision itself goes to show that the same would not cover any application under any of the provisions of Order XXI of the Code. In that view of the matter, it is submitted that there was no provision at all, available to the concerned court for condoning such delay and allowing the restoration application. So far the provision of law labelled in the petition filed by the decree holders, it has been urged that in view of the specific provisions contained for hearing and disposal of the application filed under Order XXI of the Code, the provisions as contained in Rule 9 of Order IX of the Code would not be applicable and such application would be deemed to have been filed under the proper provision, which is Rule 106(1) of Order XXI of the Code. Similarly, since there is specific provision in the 6 Code itself limiting the time period for filing such application for restoration as being 30 days, the court concerned cannot invoke its inherent power under section 151 of the Code for allowing such petition, which had admittedly been filed much after such stipulated period prescribed in sub-rule (3) of Rule 106 of Order XXI of the Code. Learned counsel, in support of his submission, has placed reliance upon a decision rendered by the Apex Court in Damodaran Pillai and Ors. V. South Indian Bank Ltd. (2005(4) PLJR Supreme Court 189). It is submitted that the Apex Court in identical matter has held that since the period of limitation has been fixed by the provisions of the Code and not in terms of the second schedule appended to the Limitation Act, the civil court in absence of any express power cannot condone the delay. For that purpose, in the absence of applicability of the provision of section 5 of the Limitation Act, 1963, the court cannot invoke its inherent power also as when power is to be exercised by the civil court under an express provision, it cannot take recourse to its inherent power. Learned counsel on behalf of the decree holders- opposite party nos. 1 to 3 submitted that sufficient cause 7 had been shown before the court concerned for the purpose of condoning the delay as well as for their non- appearance on the date fixed in the miscellaneous case concerned. It has been submitted that the law is hand made for justice and as it is also well settled that the decree holder should not be prevented from getting the fruits of the decree. It has further been urged that of course, there was omission on the part of the decree holders, but the same had sufficiently been explained and the court concerned was fully satisfied with the reasons which had prevented the decree holders from appearing on the date fixed and also for not filing the application for restoration within the fixed period of 30 days from the date of passing of the order. It is submitted that even though the civil court concerned did not have power under Order XXI Rule 106 of the Code, in the interest of justice it could have definitely allowed such prayer under its inherent power. Lastly, it has been contended that if the execution case is not restored and the decree holders are not allowed to take the fruits of the decree, then the same would cause injustice and hardship upon them. However, it is submitted on behalf of the 8 petitioner that the Supreme Court of India in Damodaran Pillai and others (supra) has also observed that hardship or injustice may be a relevant consideration in applying the principles of interpretation of statute, but the same cannot be considered for extending the period of limitation. The relevant passage is reproduced as under:- “21. Hardship or injustice may be a relevant consideration in applying the principles of interpretation of statute, but cannot be a ground for extending the period of limitation.” As has been discussed above, the Apex Court in the aforesaid decision has also held that in the absence of applicability of the provisions of Section 5 of the Limitation Act, the court cannot invoke its inherent power in condoning the delay as when a power is to be exercised by a civil court under an express provision, the inherent power cannot be taken recourse to. It would be relevant here to quote the relevant passages of the aforesaid judgment of the Apex Court, which are as under: “14. It is also trite that the civil court in absence of any express power cannot condone the delay. For the purpose of condonation of delay 9 in absence of applicability of the provisions of Section 5 of the Limitation Act, the court cannot invoke its inherent power. 15. It is well-settled that when a power is to be exercised by a civil court under an express provision, the inherent power cannot be taken recourse to. 16. An application under Section 5 of the Limitation act is not maintainable in a proceeding arising under Order XXI of the Code. Application of the said provision has, thus, expressly been excluded in a proceeding under Order XXI 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.” In an earlier decision in Johri Singh v. Sukh Pal Singh and others (AIR 1989 Supreme Court, 2073) the Apex Court had held that the High Court had jurisdiction to interfere with the order of the civil court only if the said Judge had no jurisdiction to make the order 10 it has made and had acted in breach of any provision of law or committed any error of procedure which was material and may have affected the ultimate decision. In this case, it had been urged by the petitioner that since the court concerned had no jurisdiction to pass the order, it is a fit case in which this Court should make an interference. For the reasons aforementioned and in view of the law laid down by the Apex Court in Johri Singh (supra), as discussed above, I hold that the impugned order cannot be sustained as period for filing application for setting aside the order of dismissal of execution case for want of prosecution has specifically been limited to 30 days from the date of order, by Order XXI Rule 106(3) of the Code. Such application having been filed after a delay of about four years, the same could not have been allowed by the court concerned even in exercise of its inherent powers under Section 151 of the Code. Accordingly, the impugned order dated 09.06.2006 is set aside and this Civil Revision is allowed. However, it is made clear that, since admittedly, the decree has been upheld in the title appeal and the petitioner had preferred Second Appeal, which had been 11 dismissed for default and MJC No. 1064 of 2008 has been filed by the petitioner for its restoration, this order will not come in the way of the decree holder if a fresh execution case is filed by him and the same is permissible under law. SC ( Dr. Ravi Ranjan, J.)