Can Entertain Delay Condonation Applications In Execution Proceedings Even In Absence Of Specific Provision: Madras High Court Reiterates

Justice K Kumaresh Babu followed an earlier decision of the Madras High Court in N.Rajendran v. SriramChits Tamil Nadu Private Limited where Justice V Ramasubramanian had traced out the history of the provisions regarding the execution petition and had held that though after the amendment of CPC, there was no specific provision for condonation of delay, as long as the provision was not inconsistent with the later amendments, the courts could follow the same.

In the present case, the party had filed a revision petition against the decision of the Executing Court in refusing to condone the delay. The parties contended that the delay was genuine and not intentional. However, respondents opposed this revision mainly on the ground that the application to condone the delay was itself not maintainable as there was no such provision.

The court then went on to track the history of the provisions relating to Execution contained in the CPC. The court noted that Rule 105 (which was introduced by way of a Madras High Court amendment) provided for an application to set aside an ex-parte order. Sub Rule (3) prescribed a period of 30 days for filing of such an application. By way of another amendment, a proviso was added to this sub-rule which provided for condonation of delay in filing the application within the prescribed time, if the court was satisfied that there was sufficient cause.

Later, in 1976, when the CPC was amended, Rule 104 to 106 were introduced to Order XXI. These provisions were similar to the earlier Rules of the Madras High Court Amendment. However, proviso to earlier Rule 105 (which now became Rule 106) did not find place after the new amendment.

The court however, followed the earlier decision of Justice Ramasubramaniam where he held that So long as the Proviso under sub-rule(3) is not shown to be inconsistent with any of the amendments, it cannot be stated to have been repealed under the Central Amendment Acts and therefore, the courts continued to have power to entertain petition for condonation of delay.

The court added that it could not shy away from the rules of judicial discipline and had to follow the dictum laid down by the courts earlier and which had been followed since then.

More than half a dozen judgements has followed the ratio laid down by this Court in the judgement reported 2011(6) CTC 268. I cannot shy away from the strict rules of judicial discipline in coming to a different conclusion. Hence on the legal issue as to whether an application to condone the delay in an execution proceedings would be maintainable, I am of the view that as per the dictum laid down in 2011(6) CTC 268 and followed by this Court in various judgments, application to condone the delay in execution proceedings particularly under Order 21 Rule 106 is maintainable.

The court thus set aside the order of Executing Court refusing to condone the delay and directed the court to restore the application for setting aside an ex parte order.

Case Title: The Sports Development Authority v. The Tamil Radhesoami Satsang Association

Citation: 2023 LiveLaw (Mad) 97