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2003 DIGILAW 454 (KER)

R. Rajeswari v. Anil Fire Works Factory Sivakasi

2003-07-15

K.S.RADHAKRISHNAN, PIUS C.KURIAKOSE

body2003
JUDGMENT K.S. Radhakrishnan, J. 1. This appeal has been preferred by the assignee of the first defendant. Suit was instituted by the first respondent herein as plaintiff praying for a decree for partition of 1/ 4th rights of the plaint schedule property with mesne profits at the rate of Rs. 1,200/- per year. Trial Court decreed the suit. In appeal it was confirmed. Aggrieved by the same this appeal has been preferred. 2. When the matter came up for hearing, counsel appearing for the respondents raised a preliminary objection that the appeal itself is not maintainable. We will deal with that question after examining the facts of the case. Plaint schedule property belongs to defendants 1 to 4. Fourth defendant is the son of the first defendant and has a share. Plaintiff had instituted suit. O.S. No. 163 of 1974 before the Munsiff's Court, Sathur as against fourth defendant which was decreed. The decree was sought to be executed by filing E.P. No. 383 of 1976 which was filed before the Munsiff's Court. Palghat, for attachment and sale of the fourth defendant's rights in the property. Fourth defendant's right was sold and purchased by the plaintiff on 27-11-1978 in execution of the decree and the court confirmed the sale on 31 -1 -1979. Plaintiff obtained symbolic, delivery as per sale certificate dated 31-1-1979 and was recorded on 11 -02-1980. Plaintiff is therefore in joint possession of the property belonged to defendants 1 to 3 and his 1/4th right in the same. 3. First defendant filed a written statement stating that the share of the fourth defendant was not available to be attached in E.P. No. 383 of 1976 on the file of the Munsiffs Court, Palghat since he had no saleable interest in the property at that time. Fourth defendant was doing business in the property and had kept sales tax arrears for 1968-69, 1969-70 and 1970-71 amounting to Rs. 22,467-25. State had got paramount charge over the share of the fourth defendant. Consequently it had initiated revenue recovery proceedings against him. In exercise of the powers conferred under the Revenue Recovery Act, District Collector, Palghat had brought fourth defendant's properties to sale after due publication. First defendant purchased the said property in public auction held on 28-10-1980 which was later on confirmed as per District Collector's order dated 30-12-1980. Consequently it had initiated revenue recovery proceedings against him. In exercise of the powers conferred under the Revenue Recovery Act, District Collector, Palghat had brought fourth defendant's properties to sale after due publication. First defendant purchased the said property in public auction held on 28-10-1980 which was later on confirmed as per District Collector's order dated 30-12-1980. Plaintiff is therefore estopped from claiming any right in the property. It was contended that the suit was liable to be dismissed. In order to establish his case plaintiff had produced Exts. A1 and A2 documents. No oral evidence was adduced on the side of the plaintiff. On the side of the defendants first defendant got examined as DW-1 and Exts. B1 to B2 were produced. Trial Court framed an issue whether the plaintiff had acquired any valid title in respect of 1/4th share of the fourth defendant and. also examined the question as to whether Government had any prior charge and the auction sale was subject to such charge. After examining the oral and documentary evidence the Trial Court came to the conclusion that first defendant did not succeed to the fourth defendant's share of the property pursuant to revenue sale. It was therefore held that the plaintiff was entitled to get preliminary decree for partition and mesne profits from defendants 1 to 3 from the date of the plaint: Judgment was delivered on 27-09-1983. 4. The first defendant then filed A.S. No. 22 of 1984 before District Court, Palghat on 7-2-1984: Appeal was not competent before District Court, Palghat and returned for presentation before this Court. Appeal was then filed before this Court on 20-8-1984 and numbered as A.S. No. 217 of 1984. When the appeal was heard by the learned Single Judge a preliminary objection was raised by the respondents that the appeal was not filed within the period of limitation. It was pointed out that no petition for condoning the delay was filed. Consequently exclusion of time is not possible under S.5 of the Limitation Act. It was also pointed out that the court below was not justified in fixing the time for presenting the appeal before this court and the appeal was barred by the law of limitation. On facts also learned single judge found there is no merit in the appeal. Consequently the appeal was dismissed. 5. It was also pointed out that the court below was not justified in fixing the time for presenting the appeal before this court and the appeal was barred by the law of limitation. On facts also learned single judge found there is no merit in the appeal. Consequently the appeal was dismissed. 5. Before we examined the merits of the case we may examine whether appeal is maintainable. We find from the facts that appeal was wrongly filed before the District Court, Palghat though it should have been filed before this court. Counsel appearing for the appellant cited several decisions before us and contended that the learned single judge ought to have condoned the delay since the appellant was honestly and diligently prosecuting the matter before the District Court, Palghat. Counsel placed reliance mainly on the decisions. Such as Sarojini v. Pathummal (1987 (2) KLT 576), M/s. Builders Supply Corporation v. The Union of India ( AIR 1965 SC 1061 ), Parameswaran v. Ramachandran ( 1986 KLT 982 ) Zafar Khan and Others v. Board of Revenue and Others ( AIR 1985 S.C. 39 ), Abraham v. Sadanandan and Others ( 1979 KLT 493 ) etc. 6. We notice that the appeal filed before the District Court was not maintainable. The appeal was kept pending before the court from 7-2-1984 to 30-7-1984. The appeal ought to have been filed before this court. District Court returned the appeal memorandum. The appeal was filed before this court only on 20-08-1984. Contention was raised before the learned single judge that since the appellant was prosecuting with due diligence and good faith before the District Court the period spent before that court be excluded under S.14 of the Limitation Act. Even if the period spent between 7-2-1984 and 30-7-1984 be excluded under S.14 the appellant had not filed any application under S.5 of the Limitation Act to exclude the delay from 30-7-1984 to 20-8-1984 before this Court. It is well settled existence of sufficient cause is a condition precedent for the exercise of power of granting or refusing extension of time. Since no application was filed under S.5 of the Limitation Act for condoning the delay in filing the appeal. A.S. No. 217 of 1984 was incompetent and was liable to be dismissed on that ground alone: Filing of an application under S.14 by itself will not save limitation. Since no application was filed under S.5 of the Limitation Act for condoning the delay in filing the appeal. A.S. No. 217 of 1984 was incompetent and was liable to be dismissed on that ground alone: Filing of an application under S.14 by itself will not save limitation. There is a clear distinction between S.5 and S.14. S.5 affords an extension of time for sufficient cause. S.14 provides for exclusion of time during which civil proceedings was pending in computing the period of limitation. 7. The appellant after filing this appeal filed C.M.P. No. 1953 of 1992 for exclusion of time under S.14 and S.5 of the Limitation Act for filing the Appeal Suit. We are of the view, such a petition is not maintainable in this appeal. But should have been filed in the Appeal Suit. We may also point out that the District Court has no power to grant time for filing the appeal before the superior court. It is for the superior court to determine whether application under S.14 or under S.5 be allowed or not. We have no hesitation to hold that the appeal. A.S. No. 217 of 1984, was incompetent and was rightly dismissed. Since the Appeal Suit was not competent, this appeal from that appeal is also not liable to be entertained as it is not maintainable. Since we have found that the appeal is not maintainable. We need not further probe into the merits of this case. The appeal would therefore stand dismissed. Parties would bear their respective costs in this appeal.