1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6622 OF 2009 ALONGWITH WRIT PETITION NO.1077 OF 2010 The Commissioner, Nashik Municipal Corporation, Nashik .. Petitioner (In both the petitions) versus M/s.R.M.Bhandari & Anr. Respondents (In both the petitions) Mr.M.L.Patil for the petitioner in both the petitions. Mr.G.S.Godbole i/by Mrs.Jai V. Kanade for respondents in both the petitions. CORAM : A.S. OKA, J. DATE ON WHICH SUBMISSIONS ARE HEARD : 30th March 2010. DATE ON WHICH JUDGMENT IS PRONOUNCED: 3rd May 2010. JUDGMENT: . On 15th September 2009 notice for final disposal was issued in Writ Petition No.6622 of 2009. The Parties were put to notice that both the petitions will be taken up together for final disposal. 2 2. The petitioner in both the petitions under Article 227 of the Constitution of India is the Nasik Municipal Corporation. A suit was filed by the petitioner against the respondents on 18th August 1994. The trial Court passed a money decree dated 18th October 1994 against the respondents in the sum of Rs.83,31,828.08/- with interest and costs. An application for execution of the said decree being Special Darkhast No.49 of 2002 was filed by the petitioner on 30th January 2002. By order dated 29th July 2006, the execution application was dismissed for default on the ground that the petitioner and advocate for petitioner were absent and that they were absent on earlier two to three dates. The executing Court observed that no steps have been taken by the decree-holder. An application was made by the petitioner on 25th August 2006 for restoration of the execution application by setting aside the order dated 29th July 2006. By order dated 29th October 2007 the executing Court dismissed the said application by observing that there is no express provision for restoration of execution application. The Court relied upon a decision of this Court in the case of Mhatarba Laxman Dongare (Dead Through L.Rs.) Vs. Central Bank of India & Ors [2005(2) ALL MR 742]. 3. Thereafter, on 17th December 2007 a fresh execution application was filed by the petitioner. An application was made by the respondents in the said execution application contending that the application was barred by limitation. By order dated 21st March 2009, the said execution application was dismissed by the executing Court on the ground that the same was filed after expiry of period of twelve years from the date of the decree sought to 3 be executed. Writ Petition No.6622 of 2009 has been filed by the petitioner on 29th July 2009 for challenging the said order dated 21st March 2009. 4. Writ Petition No.1077 of 2010 has been filed by the petitioner for challenging order dated 29th October 2007 passed by the executing Court by which the application for restoration of the first application for execution was dismissed. This writ petition has been filed on 3rd February 2010. 5. The learned counsel appearing for the petitioner in support of the Writ Petition No.6622 of 2009 submitted that admittedly the decree has not been satisfied and therefore, a fresh application for execution was competent. He relied upon a decision of the Privy Council in the case of Govind Prasad and Another Vs. Pawankumar [A.I.R (30) 1943 Privy Council 98]. He placed reliance on another decision of the Apex Court in the case of Ramaswami Chettiar & Others Vs. The Official Receiver, Ramanathapuram (AIR 1960 Supreme Court 70). He submitted that the second application for execution was filed within a period of three years from the date on which the earlier application for execution was dismissed for non prosecution. He submitted that as the second application for execution was filed within the three years of dismissal of the earlier application, the executing Court committed an error by holding that the second application was barred by limitation. 6. In support of the Writ Petition No.1077 of 2010 , he submitted that 4 there was no provision of law under which the execution application could have been dismissed for non prosecution. He submitted that the execution application could not have been dismissed unless the decree was marked as satisfied. He submitted that the decision of this Court in the case of Mhatarba (supra) does not consider the provision of Rule 106 of Order XXI of the Code of Civil Procedure, 1908 which expressly provides for an application for restoration. He submitted that the said decision is per incuriam as the said decision does not consider express provision of Rule 106 of Order XXI of the said Code. He submitted that in the said decision this Court has considered a case where execution application was dismissed by taking recourse to section 151 of the said Code. He submitted that the Court has inherent power to correct its own mistake. He submitted that the said decision in the case of Mhatarba (supra) will not come in way of the executing Court restoring execution application. He submitted that there is sufficient explanation for delay in filing the writ petition. He submitted that the petitioner received legal advice to file a fresh execution application which was dismissed as barred by limitation. After filing companion petition for challenging the order of dismissal, the petitioner was advised to challenge the order dated 29th October 2007. 7. The learned counsel appearing for the respondents submitted that the application for execution will be governed by Article 136 of the Limitation Act, 1963 (hereinafter referred to as the said Act of 1963). He submitted that at 5 no point of time there was stay granted to the execution of the decree and therefore the starting point of limitation is 18th October 1994 which is the date of passing the decree. He, therefore, submitted that the second execution application filed on 17th December 2007 was filed after expiry of period of twelve years and therefore the same was clearly barred. 8. He submitted that not only that there is gross delay of more than two years in filing Writ Petition No.1077 of 2010, but the very act of filing the said petition is not bonafide. He invited my attention to the annexures of the affidavit filed by the respondents. He pointed out that against the decree which is sought to be executed First Appeal No.344 of 1995 was filed by the respondents. He pointed out that when the First Appeal came up before this Court on 13th January 2008, a pursis was filed by the respondents herein who were appellants in the said Appeal. In the said pursis it was stated that as a consequence of lapse of period of twelve years from the date of the decree, the execution application has become barred by limitation and therefore the respondents were unconditionally withdrawing the appeal. He invited my attention to order dated 13th January 2009 passed by the Division Bench. He pointed out that the Division Bench has referred to the pursis which records the reason for withdrawal. He pointed out that the petitioner was represented in the appeal and the advocate for the petitioner recorded no objection for withdrawal of the appeal. He submitted that it was the duty of the petitioner to point out before the Division Bench that the petitioners 6 were intending to file a fresh execution application or that the petitioner was intending to challenge the order dated 29th October 2007. If such statement would have been made, the respondents could not have withdrawn the appeal. He submitted that the contents of the pursis filed by the respondents show that the petitioner was made fully aware of the reason why appeal was being unconditionally withdrawn. He placed reliance on a decision of the Apex Court in the case of U.P.Jal Nigam and Another Vs. Jaswant Singh and Another [(2006) 11 Supreme Court Cases 464]. He submitted that conduct of the petitioner shows that the petitioner was never vigilant and that the petitioner has acquiesced to the fact that the execution has become time barred. He submitted that as a result of default and gross delay on the part of the petitioner the respondents have changed their position by unconditionally withdrawing appeal and if the execution application is restored, irreparable loss will be caused to the respondents. He submitted that considering gross delay and latches, the Writ Petition No.1077 of 2010 cannot be entertained. He also relied upon another decisions of the Apex Court in the cases of Karnataka Power Corporation Ltd through its Chairman and Managing Director and Another Vs. K.Thangappan and Another [(2006) 4 Supreme Court Cases 9]. He submitted that as the respondents have drastically changed their position due to gross delay on the part of the petitioner , this Court must decline to exercise discretionary jurisdiction under Article 227 of the Constitution of India. 7 9. The learned counsel appearing for the petitioner submitted that the petitioner will have no objection if First Appeal preferred by the respondents is restored. 10. I have given careful consideration to the submissions. As far as Writ Petition No.6622 of 2009 is concerned, it must be stated here that the date of the decree is 18th October 1994 and it is not in dispute that since that date the operation of the decree was not stayed. There is no difficulty in accepting that the second execution application was maintainable notwithstanding the dismissal of the first one as admittedly the decree was not satisfied. However, the second application was filed on 17th December 2007. Under Article 136 of the said Act of 1963, the period of limitation for executing a decree is twelve years from the date on which the decree becomes enforceable. In the present case, the decree was enforceable from the date on which the same was passed. The second execution application was clearly filed after expiry of period of twelve years from the date on which the decree became enforceable. There is no provision either under the said Code or under the said Act of 1963 which provides that second execution application filed within a period of three years from the dismissal of first execution application can be entertained on merits. Perhaps the submission is based on section 48 of the said Code as well as on Article 182 of the Limitation Act, 1908 which have been repealed. Therefore, the second execution application was clearly barred by limitation and therefore Writ 8 Petition No.6622 of 2009 must fail. 11. Now turning to the facts of the Writ Petition No.1077 of 2010, the first question is whether there was a power vesting in the executing Court to restore the execution application. Before dealing with this aspect, it will be necessary to consider the order dated 29th July 2006. It is not the case that execution application was dismissed as the decree was satisfied. The decree is for an amount of Rs.82,00,000/- and more with interest passed in a suit of a public body like Municipal Corporation. There is no specific provision under the said Code under which the execution application could have been dismissed on the ground of absence of the advocate representing the decree holder. At highest, it can be said that the power under section 151 of the said Code was invoked to dismiss the execution application. The execution application is not a substantive proceeding in the sense that an occasion for filing execution application arises when the judgment debtor does not comply with the decree of the Court. In a sense, execution application is not a lis between the parties to the suit. On such application being filed in accordance with rule 11 of Order XXI of the said Code, the executing Court has to take steps for executing the decree. No particular serious default on the part of the petitioner has been set out by the executing Court in the order dated 29th July 2006. Within few days i.e on 25th August 2006, application for restoration was made in which it was stated that on the date fixed the advocate of the petitioner was present but as his another matter was called out in other Court he went to the other Court and after he 9 left the Court the execution application was dismissed. 12. Reliance was placed on decision of this Court in the case of Mhatarba (supra) to contend that there is no power vesting in the Court to restore execution application and only remedy is to file a fresh application for execution. In paragraph 3 this Court held thus: “... In my view, in the absence of any execution petition which is dismissed in default or for non-prosecution, it is not possible for a Court to restore the execution petition, which is so dismissed by resorting to section 151 of the Code of Civil Procedure. But, it would be open to the decree holder to file a fresh execution petition because filing of a fresh execution execution petition is not barred by any law.” On plain reading of the aforesaid paragraph it appears that this Court has observed that the execution application was dismissed by taking recourse to section 151 of the said Code. This Court has not considered whether power under section 151 of the said Code can be exercised to restore an execution application. This Court in the case of Mhatarba (supra) has held that there is no express provision in the said Code for restoration of an execution application. This Court was not called upon to decide the question whether an execution application which is erroneously dismissed can be restored in exercise of powers under section 151 of the said Code. This Court has not decided the said issue. This decision cannot be read as a binding precedent in support of the proposition that even in exercise of power under section 151 of the said Code, the execution application cannot be restored. In the 10 case of Budhia Swain v. Gopinath Deb, (1999) 4 SCC 396, the Apex Court in paragraph No.8 observed thus: “8. In our opinion a tribunal or a court may recall an order earlier made by it if (i) the proceedings culminating into an order suffer from the inherent lack of jurisdiction and such lack of jurisdiction is patent, (ii) there exists fraud or collusion in obtaining the judgment, (iii) there has been a mistake of the court prejudicing a party, or (iv) a judgment was rendered in ignorance of the fact that a neces- sary party had not been served at all or had died and the estate was not represented. The power to recall a judgment will not be exercised when the ground for reopening the proceedings or vacating the judgment was available to be pleaded in the original action but was not done or where a proper remedy in some other proceeding such as by way of appeal or revision was available but was not availed. The right to seek vacation of a judgment may be lost by waiver, estoppel or ac- quiescence.”(Emphasis added). In the present case though there was no specific power vesting in the executing Court, execution application was dismissed on the ground of absence of the advocate for the petitioner. The decree was not satisfied and hence, the application could not have been dismissed on the ground of absence of the advocate. The execution application was erroneously dismissed. The Court is not powerless to exercise jurisdiction under section 151 of the said Code in such a case in as much as there is no prohibition under the provisions of said Code against the Court restoring execution application. Exercise of the said power under section 151 will not nullify any express provisions of the said Code. Therefore, the Court has a power under section 151 of the said Code to restore execution application which 11 was erroneously dismissed. 13. Another limb of argument made by the learned counsel appearing for the petitioner is that Rule 106 of Order XXI of the said Code confers power of restoration. Rules 105 and 106 reads thus: “105. Hearing of application.—(1) The Court, before which an ap- plication under any of the foregoing rules 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 the 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 applica- tion be dismissed. (3) Where the applicant appears and the opposite party to whom the notice has been issued by the Court does not appear, the Court may hear the application ex parte and pass such order as it thinks fit. Explanation.—An application referred to in sub-rule (1) includes a claim or objection made under Rule 58. 106. Setting aside orders passed ex parte, etc.—(1) The applic- ant, 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 un- der sub-rule (3) of that rule or under sub-rule (1) of Rule 23, may ap- ply 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 ap- plication was called on for hearing, the Court shall set aside the or- der 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) un- less 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.]” These two Rules are under the caption “Resistance to delivery of 12 possession to decree-holder or purchaser” The Rules starting from Rule 97 upto Rule 106 are under the said caption. The Rule 105 is applicable to “an application under foregoing rules under this Order”. Thus, the Rule 105 will not apply to all Rules under Order XXI. The Rule 105 applies to applications which are specifically provided under Rules 97 onwards of Order XXI of the said Code. Thus, reference to applications in Rule 105 is to applications under Rule 97 or Rule 99 of the said Code. There is a provision under Rule 106 for setting aside the ex-parte orders in as much as under Rule 103, the orders made on adjudication of applications under Rule 97 and 99 are treated on par with a decree in so far as provision of appeal is concerned. Therefore, Rule 106 will not apply to the application for restoration of execution application. 14. The learned counsel appearing for the respondents has contended that First Appeal against the decree was withdrawn on 13th January 2009 by filing a pursis stating therein that the application for execution has become time barred. The pursis itself records that the appeal was being unconditionally withdrawn. The respondents took the risk of unconditionally withdrawing the appeal as they were under impression that the execution application was barred by limitation. The act of giving no objection by the advocate appearing for the petitioner to unconditional withdrawal, by no stretch of imagination will amount to waiver or abandonment of the right of the petitioner to apply for restoration of the execution application or the right 13 of the petitioner of challenging the order of dismissal of the execution application. On the basis of an impression that execution was barred by limitation, the appeal was unconditionally withdrawn by the respondents. The consent of the advocate for the petitioner is to the unconditional withdrawal of the appeal. There was a money decree in favour of a public body like the petitioner Municipal Corporation in the sum of Rs.82,00,000/- with interest. The unconditional withdrawal of the appeal was an unilateral act on the part of the respondents. The consent given to unconditional withdrawal will not amount to waiver of rights of the petitioner on the basis of the decree. It is pertinent to note that when the appeal was unconditionally withdrawn by the respondents, the second execution application filed by the petitioner was very much pending. The respondents took the risk of unconditionally withdrawing the appeal. This is not a case where on the basis of certain representation or on the basis of conduct of the petitioner , the pending appeal was withdrawn unconditionally. The respondents took risk by withdrawing the appeal unconditionally. In the circumstances, now the respondents cannot make a grievance that they have changed their position. When the appeal was withdrawn, the second execution application was pending. The petitioner challenged the dismissal of the second execution application by filing the first writ petition. The said writ petition was filed expeditiously. After the said petition was filed, it appears that the petitioner was advised to file a separate petition for challenging the order of executing Court by which application for restoration of first application was 14 dismissed. It cannot be said that because of the delay on the part of the petitioner the respondents have changed their position. The respondents have to blame themselves for unconditionally withdrawing the appeal. 15. The decree in the suit of the petitioner-Municipal Corporation is of a very large amount. The execution application was erroneously dismissed and therefore the present petition cannot be thrown out only on the ground of delay. There is an assurance that the petitioner will not object to restoration of the appeal. Moreover, the respondents can be compensated by awarding compensatory costs as the respondents may now be required to apply for restoration of their appeal. The amount of costs is quantified at Rs.25,000/-. 16. Hence, I pass the following order: : O R D E R : (a) Writ Petition No.6622 of 2009 is rejected. (b) Writ Petition No.1077 of 2010 is allowed. The order dated 29th October 2007 in Civil Misc. Application No.155 of 2006 is quashed and set aside. The said Civil Misc Application is allowed and Special Darkhast No.49 of 2002 is restored. The Special Darkhast will proceed in accordance with law. (c) The petitioner shall pay costs of Rs.25,000/- to the respondents 15 within a period of eight weeks from today. Payment of costs will be condition precedent. The amount to be deposited with trial Court. (d) The execution application will stand restored only if compliance is made with the order of payment of costs. To enable the respondents to take appropriate steps, the execution application will remain stayed till 3rd August 2010. (A.S.OKA,J)