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G. Subramania Mudali Vs. Srinivasa Pillai and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtChennai High Court
Decided On
Reported in(1979)2MLJ373
AppellantG. Subramania Mudali
RespondentSrinivasa Pillai and anr.
Cases ReferredVide Mangu Ram v. Delhi Municipality
Excerpt:
.....referred to in section 13 (4) taken by the secured creditor are not in accordance with the provisions of the act and the rules made thereunder, then only the tribunal can restore possession of such secured assets to the borrower. by virtue of sub-section (7) of section 17 of the securitisation act read with section 19 (12) of the recovery of debts due to banks and financial institutions act the tribunal undoubtedly possess ancillary power to pass interim orders subject to the conditions as it may deems fit and proper to impose, but it does not in any way override the special provisions contained in section 17(3) of the securitisation act. the statutory scheme of the securitisation act is such that the borrower could take recourse to application under section 17 only if one or..........of order 21, rule 105 (4) and of section 5 of the indian limitation act, 1908, which the said rule expressly refers to, an application would lie for execusing the delay in seeking to set aside the dismissal of an application for delivery.8. mr. chandran, however, countered with the argument that even though order 21, rule 105 (4), as prescribed in the local amendment in this state, refers to section 5 of the indian limitation act, the reference to that provision must be read as a reference to the corresponding provision of section 5 of the present limitation act, 1963. he said that this mode of construction was enjoined by section 18 of the madras general clauses act, 1891.9. section 18 of the madras general clauses act lays down a rule of construction for legislation by reference......
Judgment:
ORDER

V. Balasubrahmanyan, J.

1. This appeal raises a point of principle about condonation of delay in execution proceedings. A question of this sort immediately sets legal minds thinking about Section 5 of the Limitation Act, almost by automatic reflex. It did so in this case too. Only its application proved far too involved and ticklish.

2. The problem arose this way. The appellant's property was sold in execution of a decree against him. The auction-purchaser obtained his sale certificate and moved the executing Court for delivery. But this application was dismissed one the day when it was called as nobody appeared. There was a counsel on record, but he was absent. The auction-purchaser thereupon moved the executing Court for setting aside the dismissal for default. Even this application was belated, filed as it was beyond 30 days. Hence the auction-purchaser moved another application for condonation of the delay. On notice of this last application, the judgment-debtor opposed it tooth and nail. The executing Court, however, overruled his objection, allowed the application and condoned the delay. This appeal is against that order.

3. Section 5 of the Limitation Act very much figured in the Court below. It still dominated the discussion in this Court as well. Actually I heard arguments on two distinct avatars of Section 5. And throughout the discussion, each side hung on to its own favourite incarnation of the section. Mr. M. V. Chandran, for instance, for the appellant put his faith on Section 5 as it appears in the Limitation Act, 1963 now in force. Mr. M. N. Padmanabhan for the respondent, on the other hand, held fast to the previous version of Section 5 in the old Indian Limitation Act, 1908. The question is which provision are we to apply in the present case, the old Section 5 or the new Section 5.

4. If we are to apply the new Section 5, it will, as everybody agreed, put a lid on further discussion. For this section expressly excludes from its ambit all applications arising under the execution chapter of the Civil Procedure Code. As Mr. Chandran pointed out, the new Section 5 far from helping the auction-purchaser, actually hinders him from getting the relief he requires.

5. Mr. Padmanabhan, however, argued that notwithstanding the repeal and re-en act meat of the old Limitation Act of 1.908 into the new Limitation Act of 1963, it is to the old section in the old Act to which we must resort for a decision in this case. He pointed out that under the old Act execution proceedings were not excluded from the purview of Section 5. He urged that the old Section 5 alone would apply to execution proceedings before Courts in this State, because it was that section which even now expressly stands incorporated in the relevant procedural rule in force in this State, namely Order 21, Rule 105 (4) of the Code.

6. This Rule, among others, was framed by this High Court, in exercise of its mandatory power under Section 122 of the Code. It came into effect on 4th November, 1945. The Rule was couched in the following terms. It has not undergone any change even after the enactment of the new Limitation Act, 1963.

(4) The provisions of Section 5 of Indian Limitation Act, 1908, shall apply to applications under sub-rule (1),

7. The submission of Mr. Padmanabhan was that on a combined reading of Order 21, Rule 105 (4) and of Section 5 of the Indian Limitation Act, 1908, which the said rule expressly refers to, an application would lie for execusing the delay in seeking to set aside the dismissal of an application for delivery.

8. Mr. Chandran, however, countered with the argument that even though Order 21, Rule 105 (4), as prescribed in the local amendment in this State, refers to Section 5 of the Indian Limitation Act, the reference to that provision must be read as a reference to the corresponding provision of Section 5 of the present Limitation Act, 1963. He said that this mode of construction was enjoined by Section 18 of the Madras General Clauses Act, 1891.

9. Section 18 of the Madras General Clauses Act lays down a rule of construction for legislation by reference. The rule is that where a statute refers to a provision in another enactment and adopts it, and that other enactment is subsequently repealed and re-enacted, the reference in question in the statute must thereafter be treated as a reference to the provision as so re-enacted. This general Rule, however, is subject to a rider, namely that the legislation by reference may itself evince a contrary intention. This is made clear by Section 12 of the Madras General Clauses Act.

10. These principles, as embodied in the General Clauses Act, may call for application in terms only to construction of legislative enactments. But there is no reason why the basic principles cannot be applied to the construction of similar provisions in Rules and other statutory instruments made by rule-making bodies.

11. Turning to Order 21, Rule 105 (4), when this Court, as the rule-making authority, made this Rule in 1945, the one and only intention for doing so must have been to enable those who file applications beyond the prescribed period to move the Court for extension of time on showing sufficient cause for the delay. The specific reference to Section 5 of the Old Limitation Act, 1908 is meaningful only on this interpretation. It would be wholly pointless on any other understanding of the reference to Section 5. la this context, can we mechanically apply the canon of construction under Section 18 of the General Clauses Act and hold that after the enactment of the new Limitation Act, 1963, our construction of the same Rule must yield a result which proves to be diametrically opposite to the one which was intended by this Court when they drafted the Rule in the first place I think there can only be one answer to this question. This Court could not possibly have intended in 1945 that the Rule they were framing should one day be rendered waolly nugatory, not by express repeal of the Rule itself, but by a side-wind of Section 5 of the Limitation Act under going an amendment distorting it beyond recognition. To say that Rule 105 (4) evinces such an intention would be to attribute to it a wholly self-defeating legislative urge. It is a cardinal principle of construction the we must prefer that construction which makes the provision work. We cannot, in the name of statutory construction, reduce the provision to a shambles.

12. I am, therefore, quite clear in my mind that the reference in Order 21, Rule 105 (4) to Section 5 of the Limitation Act continues to refer, strictly and literally, to section' 3 of the old Act, 1908. Notwithstanding its repeal and re-enactment in the present Limitation Act, 1963. The result is that the execution Court in this case is quite right in entertaining the auction-purchaser's application for condonation of the delay in seeking to set aside the dismissal for default of the application which he filed under Order 21, Rule 103.

13. Mr. Chandran attempted another argument to nullify the effect of Order 21, Rule 105 (4). He said that this Rule was a 'special law' within the meaning of Section 29 (2) of the present Limitation Act, 1963. As such 'special law', he said, Rule 105 (4) cannot escape from the application of the present Section 5 of the Act. He said that the only way for Rule 105 (4) to avoid Section 5 of the new Limitation Act would be to find out if that rule carried any provision expressly excluding Section 5 of the new Act from the ambit of the Rule, and not otherwise. He said that Rule 105 (4) contains no such exclusory provision. He accordingly maintained that Rule 105 (4) cannot serve any purpose at all.

14. This argument of Mr. Chandran is only the other side of the coin. Learned Counsel's earlier argument was that Section 5 of the new Act excluded Rule 105 (4). His present argument is that Rule 105 (4) does not exclude Section 5 and hence it cannot work. In my opinion, this argument of frustration is also not tenable. It may be conceded that Order 21, Rule 105 (3) of the Civil Procedure Code, is a special law within the meaning of Section 29 (2) even as the supreme Court regarded Section 417 (3) of the Criminal Procedure Code as a special law. Vide Mangu Ram v. Delhi Municipality : 1976CriLJ179 . Order 21, Rule 105 may be regarded also as a local law, since it is peculiar to this State. But it does not follow from those premises that Section 5 of the new Limitation Act, 1963, would govern Rule 105 (3) or (4).

15. Mr. Chandran however relied on the following words in Section 29 (2):..provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.

16 . The argument was that there is nothing in Rule 105 (4) which 'expressly excluded', Section 5 of the new Limitation Act from applying. In my view, this is not the way to construe the words in question. The phrase 'not expressly excluded' does not mean or imply that exclusion must be in express terms. In my view, the phrase 'not expressly excluded' would take note of express exclusion as well as express non-inclusion.

In Order 21, Rule 105, this Court framed the rule expressly referring to Section 5 of the Indian Limitation Act, 1908. This express mention of Section 5 of the old Act amounted to an express non-inclusion of any subsequent amendment inconsistent with its original meaning and effect. In this view, therefore, I am satisfied that Section 5 of the new Limitation Act, 1963 cannot be invoked in the present case.

17. Mr. Padmanabhan urged a broader line of argument for his client when he said if Order 21, Rule 105 (4) were held inapplicable to this case, resort may be had to the residuary Article 137 of the Schedule to the Limitation Act, 1963, which would offer a larger period of three years for such an application. I however think that the reference to Article 137 is foreign to the scope of this appeal. The limited question both before the execution Court and in this appeal is whether the application filed by the auction-purchaser under Order 21, Rule 105 (4) read with Section 5 of the Indian Limitation Act, 1908 was maintainable. We are not concerned with the determination of the appropriate period of limitation, whether it is 30 days or 3 years nor are we concerned with the particular provision for limitation whether it is Order 21, Rule 105 (4) of the Code or Article 137 of the Limitation Act, 1963?

18. On the merits of the order passed by the Court below condoning the delay, I am satisfied that the Court did the right thing when it ordered the application. The record shows that learned Counsel who had entered appearance for the auction purchaser was absent in Court when the case was called. It subsequently transpired that he had discontinued his profession and had put his decision into effect by making himself scarce from all law Courts. Apparently, the client was not aware of these developments until long afterwards.

19. I like to imagine that lawyers practising in Courts may have excellent reasons of their own for turning their back on their profession renouncing their robes and shunning the Courts at any given moment. But where the clients are not informed of their decision before hand so as to enable them to make alternative arrangements, the result might well be to leave them in the lurch, and where parties find themselves in a quandary on such occasions, it would be a proper exercise of the Court's good conscience to redeem the litigants from the faults of the lawyers, I am glad to find that this had been the approach of the Court below in this case. I must uphold the order, accordingly as a just order.

20. In the result, this appeal is dismissed and the order of the executing Court is confirmed. There will be no order as to costs.


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