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Govind Build Home v/s Additional District and Sessions Judge & Others

    Civil Writ Petition Nos. 8451 of 2009, 12791 of 2009

    Decided On, 19 July 2011

    At, High Court of Rajasthan

    By, THE HONOURABLE MR. JUSTICE MEENA V. GOMBER

    For the Appearing Parties: Bihari Lal Agarwal with Amit Gupta, Bipin Gupta, R.K. Agarwal with Alok Chaturvedi, Nitin Jain, H.V. Nandwana, Advocates.



Judgment Text

Meena V. Gomber, J.

1. This writ petition under Article 227 of the Constitution of India has been filed by the petitioner, objection petitioner who has filed objections under O.21 R.97 CPC, against the order dated 20.11.2008 passed by the court of Additional District Judge No. 3, Jaipur City, Jaipur in Civil Misc. Appeal No. 32/2008 whereby order dated 29.9.2008 passed by the executing court i.e. Additional Civil Judge (Sr.Div.) No. 1, Jaipur City Jaipur in Civil Execution No. 25/85, was reversed.

2. The relevant facts for the purpose of decision of this petition are that Civil Suit No. 92/68 filed by non petitioner No. 3 against non petitioner No. 4 Bhawan Das (since deceased) seeking specific performance of contract in respect of plot No. 18 situated at Nahri Ka Naka, Jaipur (hereafter referred to as 'the suit plot') was decreed on 31.7.1969 in his favour as against which non petitioner No. 4 filed appeal which came to be dismissed on 16.5.1972 and the second appeal also filed by non petitioner No. 4 came to be dismissed on 4.3.1982. Where after, the execution case No. 25/85 was filed.

3. During pendency of the execution case, the non petitioner No. 4 died and his legal re

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presentatives were taken on record on 17.9.1986, who filed reply in the execution petition stating that their father had disposed of the suit plot and they did not contest the execution case. The executing court finally directed to proceed with the execution of the decree.

4. The petitioner's case is that the suit plot was initially allotted by UIB, Jaipur in 1964 to non petitioner No. 4 and the sale deed was got registered on 11.5.1976 who in turn sold this plot by registered sale deed to Thakur Das and Smt. Leela Devi. Thakur Das also died who was survived by two sons namely Mirchumal and Mohanlal, and Smt. Leela Devi was survived by daughter Smt. Janki Devi. Mirchumal, Mohanlal and Smt. Janki Devi executed a partition deed between them and Smt. Janki Devi did not get any share and Mirchumal & Mohanlal sold their respective shares to Ramesh and Bhagwanti Devi on 11.7.2006 and 15.7.2006, who sold the plot by registered sale deed dated 29.9.2006 to the present petitioner, which is a partnership firm.

5. The petitioner after obtaining permission of construction from Jaipur Nagar Nigam and after depositing the charges, constructed a five strayed building and sold shops situated in underground and on ground floor to different persons by sale-deeds and or by agreement to sell.

6. Petitioners have assailed the order passed by the appellate court on the ground that the impugned order was without jurisdiction as no misc. Appeal lies under the provisions of O. 43 R.1 CPC against the order of dismissal of restoration application in execution petition as well as against dismissal of an application under Section 5 of the Limitation Act. Therefore, the order of the First Appellate Court is liable to be quashed.

7. Second ground assailing the impugned order was that since as per settled law the provisions of Section 5 of the Limitation Act do not apply to the execution proceedings, therefore, the findings arrived at by the First Appellate Court are perverse and liable to be quashed.

8. Third ground assailing the impugned order was that the restoration application in the said execution petition had been filed by non petitioner No. 3 after thirteen years and no satisfactory explanation was given by the decree holder.

9. The learned executing court after examining the facts came to the definite conclusion that the restoration application did not lie as also the application under Section 5 of the Limitation filed in execution proceedings, also did not lie.

10. It was submitted that the appellate court, without setting aside the findings given by the court below, has upset the order of the executing court and has thus committed a jurisdictional error.

11. The petitioners submitted that they are bona fide purchasers for value without notice and are seriously aggrieved by the orders passed by the First Appellate Court because after reversal of executing court's order, the executing court started to proceed further in the matter and it had no alternative remedy except to invoke the extraordinary jurisdiction of this court under Article 227 of the Constitution of India. It was prayed that the impugned order dated 20.11.2008 passed by learned Additional District Judge in Civil Misc. Appeal No. 32/08 be set aside.

12. Reply to the writ petition was filed on behalf of non petitioner No. 3 Leelaram.

Writ Petition No. 12791/2009

13. This writ petition had been filed by the grandson of late Bhawan Das also seeking setting aside of the order dated 20.11.2008 passed by the First Appellate Court.

14. Heard learned counsel for the parties and perused the entire material on record.

15. An application seeking restoration of execution petition dismissed in default on 15.7.1994 came to be filed by non petitioner No. 3 on 27.5.2008 stating therein that he could not appear on 15.7.1994 because he was living in Mumbai and that his counsel did not inform him and further that on account of proceedings being pending before the Sub-Registrar, he could not appear.

16. The learned trial court vide its order dated 29.9.2008 passed following order:

"LANGUAGE"

17. As is clear from above that the contention of the learned counsel for non petitioner No. 3 decree-holder did not inspire the confidence of the trial court and it was dismissed. It was observed by the learned trial court that the decree-holder was himself supposed to get the registration done and file the same for further proceedings in the court. Further that the restoration application had been filed after thirteen years and the application filed under Section 5 of the Limitation Act seeking condonation of delay was not maintainable in the execution proceedings.

18. The learned trial court dismissed the application seeking restoration of execution petition on the ground of being barred by limitation, as against which the non petitioner No. 3 decree-holder filed Civil Misc. Appeal No. 32/08 which culminated in the order dated 20.11.2008 whereby the learned appellate court reversed the order dated 29.9.2008.

19. Assailing the impugned order the first submission advanced by the learned counsel for the petitioner was that learned appellate court has committed a jurisdictional error by passing the impugned order because it is a settled law that provisions of Section 5 of the Limitation Act are not applicable to the execution proceedings. As has been held by the Hon'ble Apex Court in Damodaran Pillai & others v. South Indian Bank Ltd., 2005 (3) Civil Court Cases 530 : 2005 (2) WLC (SC) Civil 573 wherein the Apex Court has held in paras 9 and 10 as under:-

"9. The learned Executing Court allowed application of restoration filed by the Respondent herein on the ground that it acquired the knowledge about the dismissal of the Execution Petition only on 25.3.1998.

10. The learned Judge, however, while arriving at the said finding failed and/or neglected to consider the effect of sub-rule (3) of Rule 106. A bare perusal of the aforementioned rule will clearly go to show that when an application is dismissed for default in terms of Rule 105, the starting period of limitation for filing of a restoration application would be the date of the order and not the knowledge thereabout. As the applicant is represented in the proceeding through his Advocate, his knowledge of the order is presumed. The starting point of limitation being knowledge about the disposal of the execution petition would arise only in a case where an ex parte order was passed and that too without proper notice upon the judgment debtor and not otherwise. Thus, if an order has been passed dismissing an application for default, the application for restoration thereof must be filed only within a period of thirty days from the date of the said order and not thereafter. In that view of the matter, the date when the decree holder acquired the knowledge of the order of dismissal of the execution petition was, therefore, wholly irrelevant."

20. Learned counsel appearing on behalf of the petitioners placing reliance on the judgment of Apex Court in Damodaran Pillai's case (supra) submitted that the impugned order dated 20.11.2008 passed by the learned First Appellate Court is perverse and against the settled principles of law. According to him it is trite law that the civil court in absence of any express power cannot condone the delay and that the learned appellate court has ignored the delay of thirteen years and seven months while reversing the order of the learned trial court passed in execution proceedings. For the purpose of condonation of delay it was argued that in absence of applicability of the provisions of Section 5 of the Limitation Act, the court cannot invoke its inherent powers. It was held by the Apex Court in paras 13 and 15 of the judgment in Damodaran Pillai's case (supra) as under:-

"13. It is also trite that the civil court in absence of any express power cannot condone the delay. For the purpose of condonation of delay in absence of applicability of the provisions of Section 5 of the Limitation Act, the court cannot invoke its inherent power.

15. An application under Section 5 of the Limitation Act is not maintainable in a proceeding arising under Order XXI of the Code. Application of the said provision has, thus, expressly been excluded in a proceeding under Order XXI 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."

21. As is clear from above that with reference to applications under O.21 CPC (the execution petition) there is a statutory bar in applying Section 5 of the Limitation Act.

22. The second argument advanced by learned counsel for the petitioner was predicated to the fact that right of appeal is neither natural nor an inherent right vested in a party. It is a substantive statutory right. It essentially should be provided by the law in force in absence of any specific provision creating a right in a party to file an appeal. Such right can neither be assumed nor inferred in favour of the party. Competent Commission of India v. Steel Authority of India Ltd. & another, (2010) 10 SCC 744.

23. I am in complete agreement with the said argument of learned counsel for petitioner. It is not clear as to under what provision the order was passed if it was under Section 151 CPC in exercise of inherent power, then also the appeal could not lie as per provisions under Section 43(1) of the CPC and if the order was passed under Section 105(1), as per Section 106(3) the limitation was only thirty days. The learned appellate court has ignored this fact of delay of thirteen years whereas the maximum period of limitation as per Article 136 of the Limitation Act is also 12 years for filing any execution petition. In this case, the restoration application was filed after thirteen years and few months.

24. For all the reasons mentioned above, in my considered view the learned appellate court has exceeded its jurisdiction by passing the impugned order and exercised a jurisdiction which did not vest in it, as there was a specific statutory bar for applicability of Section 5 of the Limitation Act in execution proceedings under O.21 CPC.

25. It is a fit case where this court should exercise its supervisory jurisdiction under Article 227 of the Constitution of India because the learned appellate court has exercised the jurisdiction in a manner not permitted by law whereby failure of justice has occasioned. Therefore, the Appellate Court's order dated 20.11.2008 deserves to be set aside and the order of Trial Court dated 29.9.2008 is upheld.

Both the writ petitions stand disposed accordingly.

Order of appellate court set aside order of execution court upheld.

Writ petition allowed.
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