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2010 DIGILAW 3817 (ALL)

Narendra Kumar v. Pradeep Saxena

2010-12-23

SANJAY MISRA

body2010
JUDGMENT : Sanjay Misra, J. – Heard Sri K.M.Garg, learned counsel for the appellant. 2. This First Appeal From Order has been filed against the order dated 14.12.2010 passed in Misc. Case No. 26 of 2010 arising out of SCC Suit No. 45 of 2005 by the Additional District Judge, Court No.7, Ghaziabad, whereby the application under Section 5 of the Limitation Act as also the application under Order 9 Rule 13 CPC filed by the appellant has been rejected. 3. Learned counsel for the appellant has at the outset submitted that the appellant was not a party in the Suit No. 45 of 2005, which was decreed against Briendra Kumar who is admittedly the brother of the appellant Narendra Kumar. At the execution stage, the appellant filed an application for recall of the judgement and decree dated 12.7.2010 alongwith an application for condonation of delay. He submits that by the impugned order while considering his application under Order 9 Rule 13 CPC, the Court has non suited the appellant on merits as well as by not condoning the delay. He states that the appellant is in possession of the shop in dispute and therefore, he was a necessary party in the suit and since he was not made a party, the decree cannot be executed against him. 4. Having considered the submission of learned counsel for the appellant and perused the impugned order, it will be seen that the court below has rejected the condonation of delay application of the appellant on the ground that both the brothers have been in collusion for the purpose of defeating the execution of the decree and no sufficient ground was made out to condone the delay. While considering the application under Order 9 Rule 13 CPC, it has rejected the same by recording that the appellant was well aware of the proceedings of the suit against his brother, wherein he had filed the affidavit Paper No. 37 Ga on 23.4.2007, but he chose not to apply for being made a necessary party in the suit, although he claims to be in possession and his brother appears to have got employment somewhere else and has left the shop. The Court, therefore, found that the proceedings in the suit which was against Brijendra Singh, the brother of the appellant was well within the knowledge of the appellant, who has himself filed an affidavit therein but has failed to apply to be impleaded as necessary party in the suit on the basis of his claim of being in? possession of the shop in question. It held that the application under Order 9 Rule 13 CPC was neither bonafide nor could be allowed, the court below has therefore, rejected such application. No error can be found in the reasoning given by the court below while rejecting the application under Section 5 of the Limitation Act nor any error can be found in the reasoning given by the court below while rejecting the application under Order 9 Rule 13 CPC. 5. At this stage, it is argued that the appellant was not a party to the suit and he claim's to be in possession of the shop in question hence he has a remedy to resist the decree of suit no. 45 of 2005 under the appropriate provision of Order 21 CPC. Insofar as the aforesaid submission is concerned, it is for the appellant to seek appropriate remedy if available to him and no direction is required by the court. 6. The appeal is accordingly dismissed. 7. No order is passed as to costs. Appeal Dismissed.