Order 21; Narendra Kumar Vs. Nand Kishore [Allahabad High Court, 20-05-2016]

Civil P.C. 1908 – O. 21 R. 97 & Section 151 – Application of a third person who objects execution of decree – An application under O. 21 Rule 97 C.P.C., which was dismissed by Executing Court by order dated 04.09.2009. Executing Court should have allowed execution case and directed that decree holders be put into possession of the property, in view of O. 21 R. 98 (2) C.P.C. on same day. Later on, ejectment of the petitioners was stayed in Writ, by order dated 22.12.2010, which was operative till 03.12.2014. Due to interim order of this Court, Executing Court was unable to pass any order in execution case except adjourning it. Execution was dismissed in default on 15.10.2011. Order dated 15.10.2011 was passed during continuance of interim order of this Court. Executing Court committed two mistake, firstly on 04.09.2009, while dismissing application under O. 21 R. 97 C.P.C., he would have allowed the execution case under O. 21 R. 98 (2) C.P.C. on the same day and secondly due to interim order of this Court dated 22.12.2010, Executing Court was unable to pass any order, except adjourning execution case; although order dated 22.12.2010 was operative till 03.12.2014 but execution case was dismissed in default on 15.10.2011. This mistake of court can be rectified, exercising inherent powers under Section 151 C.P.C.


HIGH COURT OF JUDICATURE AT ALLAHABAD

Hon’ble Ram Surat Ram (Maurya), J.

MATTERS UNDER ARTICLE 227 No. – 7035 of 2015

Petitioner :- Narendra Kumar Sharma (deceased) Respondent :-Nand Kishore Sharma (deceased) & 2 others Counsel for Petitioner :-Hem Pratap Singh Counsel for Respondent:- Satish Mandhyan

1. Heard Sri Hem Pratap Singh, for the petitioners and Sri Om Prakash, holding brief of Sri Satish Mandhyan, for the respondents.

2. This petition has been filed for setting aside the orders of Additional Civil Judge (Senior Division) dated 31.08.2015, setting aside the order of dismissal in default, condoning the delay and restoring Execution Case No. 1 of 2004 to its original number and order of Additional District Judge dated 02.11.2015 dismissing the revision of the petitioner, against the aforesaid order.

3. Narendra Kumar Sharma (now represented by the petitioners) filed a suit (registered as O.S. No. 1495 of 1994) for permanent injunction restraining his father Nand Kishore Sharma (now represented by the respondents), from ejecting him from the disputed house, claiming that it was joint family property. Nand Kishore Sharma filed a suit (registered as O.S. No. 293 of 1995) for ejectment of Narendra Kumar Sharma, claiming that disputed house was his self acquired property. Both the suits were consolidated and heard together. Trial Court, by judgment dated 28.02.2001, decreed O.S. No. 293 of 1995 and dismissed O.S. No. 1495 of 1994. Decrees of Trial Court were challenged in Civil Appeal Nos. 168 and 176 of 2001, which were dismissed by a common judgment dated 29.10.2003. The petitioners filed Second Appeal Nos. 1325 and 1334 of 2003, from the aforesaid decrees, which were dismissed on 15.05.2006.

4. Nand Kishore Sharma died on 04.01.2002 and the respondents were substituted as his heirs, on the basis of his will. The respondents filed an application (registered as Execution Case No. 1 of 2004) for execution of decree of ejectment dated 28.02.2001. Narendra Kumar Sharma filed an application (registered as Misc. Case No. 16/74/2006) under O. 21 R. 97 C.P.C., which was dismissed by Executing Court by order dated 04.09.2009. Narendra Kumar Sharma died on 19.10.2009. The petitioners filed an objection (registered as Misc. Case No. 2/7/2010) under Section 47 C.P.C., which was dismissed by Executing Court by order dated 07.10.2010. The petitioners filed an appeal (registered as Misc. Civil Appeal No. 80 of 2010) from the order dated 07.10.2010, which was dismissed by order dated 23.11.2010. The petitioners filed a writ petition (registered as Writ-C No. 74825 of 2010) against the orders dated 07.10.2010 and 23.11.2010. Initially this Court passed an interim order dated 22.12.2010, in this writ petition. Later on, writ petition was dismissed in default, by order dated 03.12.2014. The petitioners have filed an application (registered as Civil Misc. Restoration Application No. 60744 of 2014), for recalling the order dated 03.12.2014, which is pending.

5. Execution Case No. 1 of 2004 was dismissed in default on 15.10.2011. The respondents filed an application dated 17.04.2014 (registered as Misc. Case No. 19/74/13 of 2014) for recall of the order dated 15.10.2011, along with delay condonation application. The petitioners contested the recall application and filed their objection. Additional Civil Judge (SD) by his order dated 31.08.2015, held that High Court in Writ-C No. 74825 of 2010, by order dated 22.12.2010, stayed eviction of the petitioners, from the disputed house. This order was operative till 03.12.2014. The order of dismissal of Execution Case No. 1 of 2004 on 15.10.2011 was illegal. On these findings, he condoned the delay, allowed recall application, set aside order dated 15.10.2011 and restored Execution Case No. 1 of 2004. The petitioners challenged aforesaid order in Civil Revision No. 217 of 2015, which was dismissed by order dated 02.11.2015, summarily. Hence this petition has been filed.

6. The counsel for the petitioner submitted that the recall application was filed under O. 21 R. 106 C.P.C. O. 21 R. 106 (3) C.P.C. prescribes 30 days limitation, from the date of the order for filing recall application. Section 5 of Limitation Act, 1963 has not been applied, nor the Court is given discretion to enlarge limitation. Execution Case No. 1 of 2004 was dismissed in default on 15.10.2011. The respondents filed recall application on 17.04.2014. The application was not filed within 30 days. In the absence of any power to condone delay, the courts below have illegally condoned the delay. The order of condonation of delay and allowing recall application is without jurisdiction. He relied upon judgment of Supreme Court in

Damodaran Pillai Vs. South Indian Bank Ltd., AIR 2005 SC 3460

in which it has been held that under O. 21 R. 106 (3) C.P.C., 30 days limitation has been prescribed from the date of the order, for filing recall application. Section 5 of Limitation Act, 1963 has no application as such delay in filing recall application cannot be condoned. He submitted that orders of Courts below are illegal and Liable to be set aside.

7. I have considered the arguments of counsel for the parties and examined the record. First question arise as to whether