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2003 DIGILAW 1224 (AP)

Kamini Rani Gupta v. Omprakash Gupta

2003-09-24

J.CHELAMESWAR

body2003
J. CHELAMESWAR, J. ( 1 ) AGGRIEVED by the judgment and decree in O. S. No. 1551 of 1984 on the file of the learned II Senior Civil Judge, City Civil Court, hyderabad, the defendants preferred this appeal. ( 2 ) THE respondents herein filed the above- mentioned suit for the specific performance of an agreement of sale dated 11-01-1983. The matter appeared in the list on 04-08-2003, on which date this court passed an interim order in C. M. P. No. 16845 of 2003 by suspending the decree in the above mentioned suit. ( 3 ) ON receipt of the notice, the respondent- decreeholder appeared and filed C. M. P. No. 19873 of 2003 praying that the interim order dated 04-08-2003 may be vacated. In the affidavit filed in support of the said petition, it is specifically stated that the appeal is time barred and the same is required to be dismissed on that ground. ( 4 ) THEREUPON the appellants filed c. M. P. No. 20815 of 2003 with a prayer as follows:"to condone the delay of 175 days in filing the present appeal. " ( 5 ) THE judgment in O. S. 1551 of 1984 was delivered on 13-08-2002; the certified copy of the decree filed along with the memorandum of the present appeal shows that the appellants made a copy application on 23-04 2003; the copy was made ready on 07-07-2003 and the same was delivered on 08-07-2003. From the above, it can be seen from the copy the application itself is filed long after lapse of the time allowed for preferring the present appeal. However, the decreeholder filed a counter-affidavit along with C. M. P. No. 19873 of 2003, wherein it is categorically averred that the decreeholder made an application for the certified copy of judgment and decree on 14-08-2002 and received the same on 05-11-2002. On receipt of the certified copies of the judgment and decree, the decreeholder noticed that some mistakes crept into the judgment and therefore filed I. A. 1279 of 2002 for correction of the said mistakes, invoking the jurisdiction of the court under Sections 151 and 152 of the code of Civil Procedure. The court below allowed the said I. A. by an order dated 10-04-2003 and corrected the said mistakes that crept in to the judgment. The court below allowed the said I. A. by an order dated 10-04-2003 and corrected the said mistakes that crept in to the judgment. However, the appellants appear to be under the impression that I. A. 1279 of 2002 was filed by the decreeholder for an amendment of the decree. In fact no amendment of decree was sought for. In fact, in the memorandum of grounds of appeal, which was presented to this court on 30-07-2003, the appellants did mention that the appellants filed an application for certified copy of judgment on 14-08-2002; stamps were called for on 24-10-2002, and they were deposited on 25-10-2002 certified copy was made ready on 05-11-2002 and the same was received by the appellants on 06-11-2002. . But the appellants further stated in the memorandum of appeal that after the appellants received the certified copy on 06-11-2002, the decreeholder filed a petition i. e. , I. A. No. 1279 of 2002 on 14-11-2002 and in view of the fact that since the said I. A. was allowed, a fresh copy application once again was filed on 23-04-2003 by the appellants for a certified copy of the decree which eventually was given to the appellants on 08-07-2003. It is only on the basis of the certified copy given to the appellants later on 08-07-2003, the present appeal is preferred, but not on the basis of the certified copy received by them on 06-11-2002. ( 6 ) THE learned counsel for the appellants submitted that it was a bona fide mistake on the part of the appellants that the appellants believed I. A. No. 1279 of 2002 was filed for an amendment of the decree and, therefore, they did not approach this court in time and once again due to the mistaken understanding, no application for condonation of delay is filed along with the appeal, though the appellants took care to see that these facts were not suppressed and placed on record in the memorandum of the grounds of appeal. ( 7 ) LEARNED counsel for the decreeholder on the other hand submitted that in view of the fact that there was a delay whatever be the understanding of the appellants, the appeal could not have been numbered unless the court condoned the delay and in the absence of an application for condoning the delay and in the absence of an order condoning the delay, the interim order suspending the impugned decree could not have been passed in view of the provisions of Order 41 Rule 3-A (3) of the Code of Civil procedure. ( 8 ) THE learned counsel further submitted that the appellants did not approach this court with clean hands and with a view to obtain an interim order deliberately avoided filing an application for the condonation of delay. ( 9 ) THE learned counsel for the appellants on the other hand submitted that in view of the disclosure of the facts referred to earlier in this order, in the grounds of appeal, there was no deliberate attempt to mislead the court about the limitation applicable to the present appeal, but it was a bona fide mistake and wrong understanding of the legal position on the part of the appellants which made them not to file an application for condonation of delay. ( 10 ) THE fact that subsequently the appellants filed a Civil Miscellaneous Petition for condonation of delay which certainly enables the court to condone the delay if the court is satisfied with the explanation offered in such an application though not made along with memorandum of grounds. ( 11 ) THE learned counsel for the appellants relied on a judgment of the Supreme Court reported in State of M. P. v. Pradeep kumar, wherein Their Lordships at para 19 held as follows:"19. The object of enacting Rule 3-A in order 41 of the Code seems to be two fold. First is, to inform the appellant himself who filed a time-barred appeal that it would not be entertained unless it is accompanied by an application explaining the delay. Second is, to communicate to the respondent a message that it may not be necessary for him to get ready to meet the grounds taken up in the memorandum of appeal because the court has to deal with application for condonation of delay as a condition precedent. Second is, to communicate to the respondent a message that it may not be necessary for him to get ready to meet the grounds taken up in the memorandum of appeal because the court has to deal with application for condonation of delay as a condition precedent. Barring the above objects, we cannot find out from the Rule that it is intended to operate as unremediably or irredeemably fatal against the appellant if the memorandum is not accompanied by any such application at the first instance. In our view, the deficiency is a curable defect, and if the required application is filed subsequently the appeal can be treated as presented in accordance with the requirement contained in Rule 3-A order 41 of the Code. " ( 12 ) THE only other submission made by the learned counsel for the appellants that is required to be discussed is that the learned counsel for the respondent submitted that after the judgment and decree, the decreeholder lodged two caveats and took steps for lodging third caveat which technically was not lodged, but the fact that an attempt was made for filing third caveat by the decreeholder is intimated to the judgment debtors by a registered letter. The learned counsel for the respondent argued that the appellants did not even bring the fact to the notice of the court at the point of time when they obtained interim order from this court. ( 13 ) IN response to his submission, the learned counsel for appellants submitted that there was no caveat lodged as on the date when the interim order was passed. The learned counsel also argued that it is a matter of practice, barring exceptional cases, in an appeal filed by the defendants under section 96 of the Code of Civil Procedure against the judgment and decree in a suit for specific performance of agreement of sale, the stay of the execution of the decree is granted, the appellants would not derive any benefit suppressing the caveat if it was legally lodged. ( 14 ) IN the background of the above- mentioned facts and submissions, we are convinced that the delay in filing the appeal is sufficiently explained by the appellants herein. Therefore, delay is required to be condoned. ( 14 ) IN the background of the above- mentioned facts and submissions, we are convinced that the delay in filing the appeal is sufficiently explained by the appellants herein. Therefore, delay is required to be condoned. However in view of the fact that it is the wrong understanding of the legal position as submitted by the learned counsel for the appellants which caused all the inconvenience to the decreeholder, we deem it appropriate that the decreeholder should be compensated for his inconvenience. The delay will be condoned on condition the appellants pay the costs of Rs. 3000/- to the decreeholder within a period of two weeks from today. ( 15 ) C. M. P. NO. 19873 of 2003: since the petitioner herein has already been in possession of the schedule property, we do not see any reason to vacate the interim order already granted on 4-8-2003. Therefore, the interim stay is made absolute. The decreeholder would be at liberty to withdraw the amount already deposited pursuant to the interim order.