# Proviso to Order 21 Rule 105(3) of Madras Amendment Repealed by Central Amendment: Madras High Court Declares Delay Condonation in Execution Proceedings Impermissible

- Link: https://section1.in/proviso-to-order-21-rule-1053-of-madras-amendment-repealed-by-central-amendment-madras-high-court-declares-delay-condonation-in-execution-proceedings-impermissible/
- Published: 2025-06-29T10:03:19+00:00
- Author: M.S.Parthiban

Contents

 * [Facts](https://section1.in/proviso-to-order-21-rule-1053-of-madras-amendment-repealed-by-central-amendment-madras-high-court-declares-delay-condonation-in-execution-proceedings-impermissible/#facts)
 * [Ratio and Reasonings](https://section1.in/proviso-to-order-21-rule-1053-of-madras-amendment-repealed-by-central-amendment-madras-high-court-declares-delay-condonation-in-execution-proceedings-impermissible/#ratio-and-reasonings)
 * [Party](https://section1.in/proviso-to-order-21-rule-1053-of-madras-amendment-repealed-by-central-amendment-madras-high-court-declares-delay-condonation-in-execution-proceedings-impermissible/#party)

#### **Facts**

The matter arose from execution proceedings initiated to enforce a decree passed
in O.S.No.158 of 2007. When the judgment debtors failed to file their counter affidavits,
they were set ex parte and delivery was ordered. A delay of 31 days in filing an
application to set aside the ex parte order under Order 21 Rule 106(3) was condoned
by the Execution Court, which was challenged before the High Court.

#### **Ratio and Reasonings**

The Court was called upon to determine whether the proviso to Order 21 Rule 105(
3) CPC introduced by the Madras High Court in 1972 survived the 1976 amendment to
the Central Code. Upon a comprehensive examination of statutory history and judicial
interpretation, the Court held:

> _“There is obvious inconsistency between the Madras Amendment and the present 
> Order 21 Rules 104 and 105 of the Central Act… for the proviso to be workable,
> it can be read only along with Order 21 Rule 106(3) of Central Act and not otherwise.”_

The Hon’ble court has reasoned that permitting the state amendment to override or
co-exist with the central provision would effectively rewrite the statute, an impermissible
judicial act:

> _“Draftsmanship is a function entrusted to the legislature. Craftsmanship on the
> judicial side cannot transgress into the legislative domain by rewriting the words
> of a statute.” (__Saregama (India) Ltd. v. Next Radio Ltd.__, (2022) 1 SCC 701)_

The Court emphasized the significance of Section 97 of the Code of Civil Procedure(
Amendment) Act, 1976, which expressly provides that any prior High Court amendment
inconsistent with the amended Code shall stand repealed:

> _“Any amendment… by a High Court before the commencement of this Act shall… stand
> repealed.”_

This statutory command was further taken from the Hon’ble Supreme Court in _Ganpat
Giri v. Second Additional District Judge, Ballia_ (1986) 1 SCC 615, wherein it was
held:

> _“The repealing provision in section 97(1) is not confined in its operation to
> provisions of the Code including the Orders and Rules in the First Schedule which
> are actually amended by the Amending Act. The object of section 97 of the Amending
> Act appears to be that on and after February 1, 1977 throughout India wherever
> the Code was in force there should be same procedural law in operation in all 
> the civil courts.”_

Further, in _Pankajakshi (dead) through legal representatives v. Chandrika_ (2016)
6 SCC 157, the Constitution Bench clarified:

> _“What Section 97(1) really does is to state that where a State Legislature makes
> an amendment in the Code of Civil Procedure, which amendment will apply only within
> the four corners of the State, being made under Schedule VII List III Entry 13
> to the Constitution of India, such amendment shall stand repealed if it is inconsistent
> with the provisions of the principal Act as amended by the Parliamentary enactment.”_

The Hon’ble Court has carefully evaluated the impact of the Madras High Court’s 
1972 amendment introducing the proviso to Order 21 Rule 105(3), which enabled the
condonation of delay. However, it found that the language and scheme of the Central
Act of 1976 rendered the proviso incompatible:

> _“A reading of the proviso along with Order 21 Rule 105(3) indicates that the 
> proviso to Order 21 Rule 105(3) uses the expression ‘said period of 30 days’ and‘
> such period’, which is not present anywhere in the present Order 21 Rule 105(3),
> but it is prescribed only in Order 21 Rule 106(3) of Central Act… But such course
> is not permissible since it will amount to virtually rewriting the Statute.”_

The Court further emphasized the unworkability of the proviso if attempted to be
read into the current statutory framework:

> _“If the proviso brought by the Madras Amendment is held to survive, that proviso
> will apply only to Rule 105(3) of Central Act. This will lead to a situation where
> the power to condone the delay under the proviso would be available only to an
> application to set aside an order passed ex parte under Order 21 Rule 105(3) and
> not to an application to set aside the order under Order 21 Rule 105(2) dismissing
> an application for non-appearance of the parties.”_

The judgment also takes into account a series of decisions where contrary views 
were adopted, particularly _N.Rajendran v. Shriram Chits Tamil Nadu Pvt. Ltd._ (
2011) 6 CTC 268, where it was held that the proviso continued to operate. However,
the Court declared:

> _“It would be anomalous to hold that proviso to Order 21 Rule 105(3) alone would
> survive. In such view of the matter, the proviso would certainly be unworkable.”_

The Court thus reaffirmed the binding effect of the apex court’s ruling in _Damodaran
Pillai and others v. South Indian Bank Ltd._ (2005) 7 SCC 300, where the Supreme
Court ruled:

> _“An application under Section 5 of the Limitation Act is not maintainable in 
> a proceeding arising under Order 21 of the Code. Application of the said provision
> has, thus, expressly been excluded in a proceeding under Order 21 of the Code.
> In that view of the matter, even an application under Section 5 of the Limitation
> Act was not maintainable. A fortiori for the said purpose, inherent power of the
> Court cannot be invoked.”_

Thus the Hon’ble Court has concluded its analysis by stating:

> **_“As the proviso to Rule 105 of Order 21 CPC, brought in by the Madras High 
> Court Amendment, 1972, providing powers to the Courts to condone the delay in 
> execution proceedings, has been repealed after the Central Amendment, 1976, this
> Court is of the view that, it is for the High Court, on the administrative side,
> to consider re-introducing the proviso on similar lines and placing the same below
> Order 21 Rule 106(3) of the present Code. However, till such an amendment is brought
> under the First Schedule, the provisions under Order 21 Rule 106(3) CPC as of 
> now, alone would prevail and the Execution Court has no power to condone the delay
> in execution proceedings under Order 21 CPC, after expiry of the statutory period
> of limitation..”_**

#### **Party**

1.Sundarammal, 2.Sakthivel, Logeswaran (died) … Petitioners in both petitions vs.
1.Kanagaraj, 2.Ponnusamy … Respondents in both petitions – **Coram:** The Honourable
Mr. Justice N. Sathish Kumar – **Date of Judgment:** 26.06.2025 – **Case No.:** 
C.R.P.Nos.808 & 809 of 2025.

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