Isabella Mariam

The High Court of Madras Single Bench of Justice N. Sathish Kumar held that the proviso introduced by the Madras High Court to Order 21 Rule 105(3) of the Civil Procedure Code (CPC), enabling courts to condone delay in filing applications in execution proceedings, stands impliedly repealed by the Central Amendment Act of 1976. The Court invalidated the Execution Court's orders that condoned a 31-day delay in filing applications to set aside ex parte orders. It directed that the condonation of delay in execution proceedings beyond the 30-day limit prescribed under Order 21 Rule 106(3) CPC is impermissible and contrary to the statutory scheme.

The petitioners had filed a suit in O.S. No.158 of 2007 for declaration and other consequential reliefs. The suit was partly decreed on 27.01.2011. Subsequently, the decree-holders initiated execution proceedings in E.P. No.5 of 2022 to enforce the decree.

Also Read: Supreme Court Upholds Dignity In Divorce | Divorced Wife Who Remained Unmarried Entitled To Maintain Marital Standard Of Living

During the course of execution, Respondents 1 and 2, who are judgment debtors, entered appearance but failed to file their counter. The Execution Court proceeded ex parte against them on 04.07.2023 and ordered delivery.

Thereafter, the respondents filed two applications under Order 21 Rule 106(3) CPC, one to set aside the ex parte order and another to condone the 31-day delay in filing the same. The Execution Court, despite objections by the decree-holders, allowed both applications by order dated 29.07.2024, on the ground that no prejudice would be caused to the petitioners. A cost of Rs. 1,000 was imposed. Final orders were passed on 13.08.2024.

Challenging these orders, the petitioners filed Civil Revision Petitions Nos. 808 and 809 of 2025.

The petitioners contended that as per Order 21 Rule 106 CPC, applications to set aside ex parte orders must be filed within 30 days, and Section 5 of the Limitation Act does not apply to such proceedings. They relied on the Division Bench judgment in N.M. Natarajan v. Deivayanai Ammal (1989) 1 LW 178, which held that any High Court amendment inconsistent with the Central Amendment stands repealed.

They also cited Ayappa Naicker v. Subbammal (1984) 1 MLJ 214 and the Supreme Court decision in Damodaran Pillai v. South Indian Bank Ltd. (2005) 7 SCC 300, which approved the view that Section 5 of the Limitation Act does not apply to execution proceedings.

In contrast, a line of single bench decisions, beginning with N. Rajendran v. Shriram Chits Tamil Nadu Pvt. Ltd. (2011) 6 CTC 268, held that the Madras Amendment introducing the proviso to Order 21 Rule 105(3) CPC is not inconsistent with the Central Act and permits condonation.

To resolve the conflicting views, the Court appointed five Amici Curiae: Mr. R. Viduthalai, Senior Advocate, Mr. P. Valliappan, Senior Advocate, Mr. N. Manokaran, Mr. Sharath Chandran, and Mr. T.S. Baskaran.

Mr. R. Viduthalai submitted that Section 5 of the Limitation Act is consciously excluded in Order 21 CPC and the rule-making powers under Section 122 CPC cannot override substantive legal provisions. He referred to Law Commission Reports and the Supreme Court’s ruling in Damodaran Pillai.

Mr. P. Valliappan contended that the Madras Amendment remains valid and parties should not suffer due to lawyers' errors.

Mr. N. Manokaran highlighted that the Madras Amendment was inconsistent with the Central Act, leading to a situation of repugnancy. He advocated a statutory amendment to remove ambiguity.

Mr. Sharath Chandran argued that any inconsistent High Court amendment stands repealed under Section 97 of the Amending Act, 1976, and that inherent powers under Section 151 CPC cannot override statutory limits.

Justice N. Sathish Kumar recorded that "if the proviso is to be workable, it can be read only as a proviso to Order 21 Rule 106(3) and not as a proviso to Order 21 Rule 105(3) as it presently stands".

The Court noted that the original Rule 105(4), which expressly applied Section 5 of the Limitation Act, was deleted by the Madras High Court itself in 1972 following the enactment of the Limitation Act, 1963, which excluded execution proceedings from Section 5.

The Court elaborated on the history of the amendments, observing that "the Parliament did not think it fit to re-introduce Order 21 Rule 105(4) ... to make the provisions of Section 5 of the Limitation Act applicable."

It further stated, "If the proviso brought by the Madras Amendment is held to survive, that proviso will apply only to Rule 105(3) ... This will lead to a situation where the power to condone the delay... would be available only... under Order 21 Rule 105(3) and not... under Order 21 Rule 105(2) ..."

The Court held that such a partial application renders the proviso "unworkable", and added that "for the proviso to be workable, it can be read only along with Order 21 Rule 106(3) ... but such course is not permissible since it will amount to virtually rewriting the Statute."

Relying on the principle in Saregama (India) Ltd. v. Next Radio Ltd. (2022) 1 SCC 701, the Court observed that "craftsmanship on the judicial side cannot transgress into the legislative domain by rewriting the words of a statute."

Quoting Section 97(1) of the Code of Civil Procedure (Amendment) Act, 1976, the Court stated that "any amendment made... by a High Court before the commencement of this Act shall... stand repealed" if inconsistent.

The Bench further cited Ganpat Giri v. Second Additional District Judge, Ballia (1986) 1 SCC 615, to hold that the repealing provision in Section 97(1) "is not confined... to provisions... actually amended... but applies generally".

It concluded that "Order 21 Rule 105(4) and the proviso to Rule 105(3) stand repealed by operation of Section 97", and "there is no power to condone the delay in filing the application to set aside the ex parte order beyond the period of 30 days."

Also Read: Madras High Court Upholds SHRC Order Awarding Compensation | Police Forced Man To Strip And Inflicted Mental Torture During Custody | State Directed To Recover Amount From Erring Officers

The Court ruled that the Execution Court erred in allowing the applications filed by the respondents beyond the 30-day period.

It stated: "...the order of the Execution Court allowing the application under Order 21 Rule 106(3) CPC by condoning the delay of 31 days is liable to be set aside."

It concluded that "the Madras High Court Amendment providing for condonation of delay in Rule 105(3) is inconsistent with the Central Act and stands repealed."

Accordingly, it held: "The Civil Revision Petitions are allowed. The orders dated 29.07.2024 and 13.08.2024 passed in E.A.Nos.3 and 4 of 2023 in E.P.No.5 of 2022 in O.S.No.158 of 2007 on the file of the District Munsif Court, Dharapuram are set aside."

Advocates Representing the Parties:

For the Petitioners: Mr. R. Asokan, Advocate

Amici curiae : Mr.R.Viduthalai, Senior Counsel Mr.P.Valliappan, Senior Counsel Mr.N.Manokaran Mr.Sharath Chandran Mr.T.S.Baskaran

Case Title: Sundarammal & Anr. v. Kanagaraj & Anr.

Case Number: C.R.P.Nos.808 & 809 of 2025

Bench: Justice N. Sathish Kumar