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2002 DIGILAW 760 (PNJ)

Het Ram v. Santo

2002-08-06

M.M.KUMAR

body2002
Judgment M.M.Kumar, J. 1. This is an application filed under Section 5 of the Limitation Act, 1963 seeking condonation of 587 days delay in filing the revision petition. The principal ground taken in the application is that the impugned order dated 10th February, 1999 was passed exparte at the back of the judgment-debtor-petitioner (for brevity, JD-petitioner) and the time was extended by giving two months more to the decree-holder-respondents (for brevity, DH-respondents) to deposit the sale consideration. 2. Few facts which are necessary 19 decide the controversy raised in the present petition are that the suit for specific performance of the contract filed by the DH-respondents, was decreed, by the Civil Judge in their favour on 12th November, 1998, directing them to deposit the sale consideration within a period of three months in the Court so that the sale deed be executed in their favour. However, the DH-respondents were not able to comply with the terms of the decree by depositing the sale consideration within a period of three months granted by the decree which necessitated for extension of time by filing an application. Admittedly, no notice of the application was given to the JD-petitioner and at his back, the time was extended by two months on 10th February, 1999 by the impugned order. It is alleged in this application that the JD-petitioner did not have the knowledge about the order dated 10th February, 1999 which left him thinking that the terms of the decree have not been complied with and, therefore, the decree became unexecutable. However, when he received the notice of the execution application, then the abjections were filed on 4th November, 2000 on the advice of the counsel. It was pleaded that the order dated 10th February, 1999 was in contravention of the principles of natural justice at it was passed at the back of the JD-petitioner. It has further been averred that when the counsel of the High Court at Chandigarh was consulted, it was advised that the order has to be challenged on the revisional side and the executing Court would not be within its jurisdiction to go beyond the decree and order dated 10th February, 1999. Therefore, the present revision petition was filed in which the objection with regard to limitation was raised and it was found that it was delayed by 587 days. 3. Therefore, the present revision petition was filed in which the objection with regard to limitation was raised and it was found that it was delayed by 587 days. 3. In reply to the application, the DH-respondents have urged that the averments concerning the advice of the counsel of this Court as well as the trial Court are vague as nothing is revealed as to why the necessity of seeking advice from the counsel of this Court had arisen. According to the averments made in the reply, it has been left to guess work a to what was the necessity for the JD-petitioner to approach the counsel of this Court for advice. The conduct of the JD-petitioner has also been highlighted inasmuch as he tried to avoid service. He was served only by proclamation on 3rd June, 2000 and thereafter he has avoided the execution proceedings by seeking adjournments on one pretext or the other. It has further been averred that objections were filed on 4th November, 2000 and this revision petition was filed only on 21st December, 2000. 4. I have heard Shri Ashok Verma, learned counsel for the JD-petitioner and Shri Suresh Monga, learned counsel for the DH-respondents. 5. Shri Ashok Verma has argued that the JD-petitioner cannot be penalised for the wrong advice given by the counsel in the trial Court that objections could be raised in execution proceedings to the order dated 10th February, 1999 granting extension of time. According to the learned counsel, it is well settled principle that the executing Court cannot go beyond the decree and has to execute the orders as they are passed by the trial Court. Therefore, the application is meritorious and deserves to be allowed. He has further pointed that the JD-petitioner has come to the learned counsel of this Court just after tiling the objections and it was after filing the objections that the advice to file the revision petition was sought. 6. Shri Suresh Monga, learned counsel for DH-respondents has argued that the conduct of the JD-petitioner is contumacious and with great difficulty the DH-respondents have been able to serve him only on 3rd June, 2000 i.e., after about one year of the filing of the execution application. Even, thereafter, the JD-petitioner is seeking adjournment, after the adjournment. 6. Shri Suresh Monga, learned counsel for DH-respondents has argued that the conduct of the JD-petitioner is contumacious and with great difficulty the DH-respondents have been able to serve him only on 3rd June, 2000 i.e., after about one year of the filing of the execution application. Even, thereafter, the JD-petitioner is seeking adjournment, after the adjournment. He further argued that once the objection has been raised before the executing Court, the revision petition would not be competent because the JD-petitioner cannot avail two remedies against one order i.e., the order 10th February, 1999. 7. I have given serious thought to the respective arguments of the learned counsel and am of the view that the delay in filing the revision petition is not intentional. It is borne out from the facts that objections in the execution petition were filed on 4th November, 2000 and the present revision petition has been filed on 21st November, 2000. It is not beyond comprehension that a litigant after filing the objections would also be apprehending correctness of those objections and it is not surprising that he sought legal advice of the counsel at Chandigarh. Therefore, there is nothing preposterous in the conduct of the JD-petitioner to reach a conclusion that he has intentionally delayed the filing of the revision petition. Once, it is found that the allegation concerning the order dated 10th February, 1999 having been passed at the back of the JD-petitioner are found to be correct, then I am of the considered opinion that the illegality in such an order must be determined by this Court because the principles of natural justice are well settled in the arena of Laws of this Country. No lapse in following the principles of natural justice could be accepted in that regard. Therefore, I am inclined to accept the application and condone the delay of 587 days in filing the revision petition. 8. Even otherwise the Supreme Court has called for adoption of liberal approach in deciding cases concerning condonation of delay. In the case of Ram Nath Sao alias Ram Nath Sahu and Ors. Therefore, I am inclined to accept the application and condone the delay of 587 days in filing the revision petition. 8. Even otherwise the Supreme Court has called for adoption of liberal approach in deciding cases concerning condonation of delay. In the case of Ram Nath Sao alias Ram Nath Sahu and Ors. v. Gobardhan Sao and Ors., (2002-3)131 P.L.R. 648 (S.C.) their Lordships observed as under:- "Thus it becomes plain that the expression "sufficient cause" within the meaning of Section 5 of the Act or Order 22 Rule 9 of the Code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fides is imputable to a party. In a particular, case whether explanation furnished would constitute "sufficient cause" or not will be dependent upon facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thin is clear that the Courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over-jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal, an exception, more so when no negligence or inaction or want of bona fides can be imputed to the defaulting party. On the other hand, while considering the matter the Courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine-like manner. However, by taking a pedantic and hypertechnical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates, either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, Courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way." 9. For the reasons stated above, the application is allowed and the delay of 587 days in filing the revision petition is condoned. 10. While considering the matter, Courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way." 9. For the reasons stated above, the application is allowed and the delay of 587 days in filing the revision petition is condoned. 10. The revision petition be set down for motion hearing on 23rd August, 2002.