Review Petition No. 506/2011 in Execution Petition No. 38/1998. Case: Formosa Plastics Corporation Vs Ashok K. Chauhan and Ors.. High Court of Delhi (India)
| Case Number | Review Petition No. 506/2011 in Execution Petition No. 38/1998 |
| Counsel | For Appellant: Soli Sorabjee, Indu Malhotra, Sr. Advs. And Shyel Trehan, Adv. And For Respondents: Rajiv Nayar, Sr. Adv., Vinay Garg, Adv., Neeraj Kishan Kaul, Sr. Adv., A.P. Singh, Adv., Vikas Singh, Sr. Adv. and Rajesh Yadav, Adv. |
| Judges | A.K. Pathak, J. |
| Issue | Limitation Act - Section 5; Civil Procedure Code (CPC) - Sections 37, 38, 39, 39(1), 39(3), 41, 42, 44A and 151 - Order 8, Rule 1 - Order 21, Rules 22, 105, 106(1) and 106(3) - Order 47, Rule 1 |
| Judgement Date | September 20, 2011 |
| Court | High Court of Delhi (India) |
Judgment:
A.K. Pathak, J.
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Petitioner/Decree Holder had filed an execution petition No. 38/1998 seeking execution of a foreign decree. Unfortunately, execution petition was dismissed in default on 31st March, 2011.
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Petitioner filed an application under Section 151 of the Code of Civil Procedure ('Code of Code of Civil Procedure' for short) seeking restoration of execution petition. An application (E.A. No. 439/2011) under Section 5 of the Limitation Act read with Section 151 Code of Civil Procedure was also filed whereby it was prayed that the delay of about 112 days in filing the application for restoration of execution petition, be condoned. Vide judgment dated 2nd August, 2011 both the above mentioned applications have been dismissed. It was held that the decrees are executed by following the procedure as laid down under Order 21 Code of Civil Procedure, which is a complete code in itself, providing the mode and manner in which a decree has to be executed. Rule 105 of Order 21 Code of Civil Procedure envisages dismissal of an execution petition, if the decree holder fails to appear on the date fixed for hearing. Sub-Rule 1 of Rule 106 of Order 21 Code of Civil Procedure prescribes remedy of restoration of execution petition. Order 21 Rule 106(3) Code of Civil Procedure provides limitation of 30 days from the date of order for filing such application. Thus, it was concluded that an application under Section 151 Code of Civil Procedure was not maintainable and was to be treated under Sub-Rule 1 of Rule 106 of Order 21 Code of Civil Procedure. Delay could not have been condoned by exercising inherent powers of the Court, inasmuch as, applicability of Section 5 of the Limitation was excluded in respect of applications under Order 21 Code of Civil Procedure. The above view was taken by following the law laid down in Damodaran Pillai and Ors. v. South Indian Bank Ltd. (2005) 7 SCC 300 wherein Supreme Court held that the Court had no power to condone the delay in filing restoration application under Sub-Rule 1 of Rule 106 beyond the period of 30 days from the date of order of dismissal. Section 5 of the Limitation Act excludes applicability of the said provision to the applications under Order 21 Code of Civil Procedure. Since the application under Order 21 Rule 106 Code of Civil Procedure was filed after the period of 30 days, Court has no power to entertain the application for restoration of execution petition beyond a period of 30 days by invoking inherent powers.
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It is this order of which review has been sought on the ground that earlier two vital aspects were not brought to the notice of Court, that is, (a) judgment of Supreme Court in M.V. Al Quamar v. Tsavliris Salvage (International) Ltd. and Ors. (2000) 8 SCC 278 and (b) three Judges Bench judgment of...
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