DAMODARAN PILLAI AND ORS. versus SOUTH INDIAN BANK LTD.

Citation: [2005] SUPP. 3 S.C.R. 117 · Decided: 08-09-2005 · Supreme Court of India · Bench: ASHOK BHAN · Disposal: Appeal(s) allowed

Judgment (excerpt)

DAMODARAN PILL4I AND ORS. 
SOUTH INDI;~ BlNK LTD. 
SEPTEMBER 8, 2005 
[ASHOK BHAN AND S.B. SINHA, JJ.] 
Code of Civil Procedure, 1908: 
Order 21 Rules 105(2), 106(/) and (3) and Section 151. 
Execution of Decrees-Decree-holder filed execution petition which was 
dismissed for default under R. 105(2)-Decree-holder filed restoration 
application much later on the ground that he acquired the knowledge of 
dismissal of the execution petition only a few days earlier-Trial court condoned 
A 
B 
c 
the delay and allowed the said restoration application under R. 106(3)-High D 
Court dismissed the revision filed by the judgment-debtor-Correctness of-
Held: Starting point of limitation for filing of restoration application is ihe 
date of order and not the knowledge thereof-Date of knowledge of the order 
is applicable only when that order was ex parte and that too when proper 
notice was not served on the judgment-debtor-Further, S. 5 of the Limitation 
Act is not applicable to proceedings arising under 0. '11 CPC-Hence for the E 
purposes of condonation of delay inherent powers of the Court cannot be 
invoked. 
Limitation Act, 1963: 
Section 5-Period of limitation~Extension of-Grounds for-Held: F 
Hardship or injustice cannot be a ground for extending the period of limitation. 
The respondent obtained a decree against the appellant for a certain 
sum and filed an Execution Petition for execution of the said decree, which 
was dismissed for default under Order 21 Rule 105(2) of the Code of Civil 
Procedure, 1908. An application for restoration of the said Execution G 
Petition was filed by the respondent after a long delay of about 8 years 
. on the premise that it came to learn about the dismissal of the said 
Execution Petition only a few days prior to the filing of the restoration 
• application. 
117 
H 
118 
SUPREME COURT REPORTS [2005) SUPP. 3 S.C.R. 
A 
Before the trial· court the appellant raised the contention that the 
said restoration application was filed beyond the prescribed period of 
limitation. The trial court rejected the said contention. The High Court 
dismissed the revision petition filed by the appellant-judgment debtor. 
Hence the appeal. 
B 
On behalf of the appellant, it was contended that in terms of Rule 
l 06(3) of Order 21 of the Code a restoration application is required to be 
filed within 30 days from the date of passing of the order and not 
thereafter and for the said purpose Section 5 of the Limitation Act, 1963 
is not applicable and that the Executing Court could not have, thus, 
C condoned the delay in exercise of its inherent power or otherwise. 
On behalf of the respondent, it was contended that keeping in view 
the peculiar facts and circumstances of the present case the Executing 
Court should be held to have inherent power to condone the delay. 
D 
Allowing the appeal, the Court 
HELD: I. A bare perusal of Rule 106(3) of Order 21 of the Code of 
Civil Procedure, 1908 will clearly go to show that when an application is 
dismissed for default in terms of Order 21 Rule 105(2), the starting period 
of limitation for filing of a restoration application would be the date of 
E the order and not the knowledge thereof. As the applicant is represented 
in the proceeding through his Advocate, his knowledge of the ordi:r is 
presumed. The starting point of limitation being the knowledge about the 
disposal of the execution petition would arise only in a case where an a 
parte order was passed and that too without proper notice upon the 
judgment debtor and not otherwise. Thus, if an order has been passed 
F dismissing an application for default, the application for restoration 
thereof must be filed only within a period of thirty days from the date of 
the said order and not thereafter. Therefore, the date when the decree-
holder acquired the knowledge of the order of dismissal of the execution 
petition, therefore, is wholly irrelevant. (121-F, G, H; 122-A) 
G 
H 
2. 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 in 
absence of applicability of the provisions of Section 5 of the Limitation 
Act, 1963, the court cannot invoke its inherent power. [122-D) 
3. An application under Section 5 of the Limitation Act is not 
.-
DAMODARAN PILLAI v. SOUTH INDIAN BANK LTD. [S.B. SINHA, J .] 119 
maintainable in a proceeding arising under Order 21 of the Code. A 
Application of the said provision has, thus, expressly 

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