Research › Search › Judgment

Andhra High Court · body

2022 DIGILAW 1471 (AP)

Guthulu Nirmala Devi W/o Govinda Jayaramarao v. Pithani Lakshmi Devi @ Lakshmi W/o Sattiraju

2022-12-15

B.S.BHANUMATHI

body2022
ORDER : 1. This petition is filed under Section 115 of CPC against the order dated 30.11.2017 dismissing the petition in E.A. No. 75 of 2016 in E.P. No. 243 of 2010 (old No. 206 of 2007) in O.S. No. 191 of 1997 on the file of the Court of Principal Junior Civil Judge, Kakinada filed under Section 5 of the Limitation Act to condone delay of 1138 days in filing the application to set aside the order dated 15.02.2011 dismissing E.P. No. 243 of 2010 for not filing valuation certificate and non-judicial stamps and for want of representation by the DHr. 2. Heard Sri K. Koteswara Rao, learned counsel representing Sri Nageswara Rao Turaga, learned counsel for the petitioner and Sri Kiran Tirumalasetty, learned counsel for the respondents. 3. The revision petitioner/petitioner/4th DHr contended that the delay of 1138 days in filing the application to set aside the order occurred because the DHrs were under the impression that the execution petition was pending and they came to know about the dismissal of the EP only as the advocate who inform them about the dismissal of the EP when they approached on receipt of notice in caveat. Therefore, the petitioner claimed that there are no willful latches in causing the delay. 4. The petition was opposed by the 1st respondent by filing counter stating that Section 5 of Limitation Act has no application to the proceedings in execution under Order 21 CPC and that the petitioner shall explain day to day delay. The 1st respondent denied the reasons stated by the petitioner for the delay and contended that the petitioner was fully aware of dismissal of EP, but having a second thought, filed this petition with false allegations. 5. After hearing both parties, the execution Court dismissed the petition not believing the reason stated by the petitioner for the delay. The execution Court placed reliance on the decision of the Supreme Court reported in Basawaraj and Others vs. The Special Land Acquisition Officer, 2014 (1) ALD 33 (SC) on the preposition that the court has no power to extend period of limitation on equitable grounds. 6. Having aggrieved by the order impugned in the revision, this petition is filed. 7. The execution Court placed reliance on the decision of the Supreme Court reported in Basawaraj and Others vs. The Special Land Acquisition Officer, 2014 (1) ALD 33 (SC) on the preposition that the court has no power to extend period of limitation on equitable grounds. 6. Having aggrieved by the order impugned in the revision, this petition is filed. 7. The learned counsel for the petitioner submitted that apart from the lack of knowledge of the petitioner about the order of dismissal of EP, the reason for not being able to continue with the pending execution petition is that the schedule property was classified as government land, however by virtue of the order dated 26.03.2014 in W.P. No. 7498 of 2005 filed by the father of the decree holders, by name Ansuri Veerraju, the Government has removed from the classification as poramboku land and converted the property as patta land and till that time the decree could not be enforced for execution of the registered sale deed, even by the execution court. Since this fact has not been stated in the affidavit of the petitioner, or during the hearing of the petition in November, 2017, the execution Court had no opportunity to consider it in the order. 8. The learned counsel for the petitioner submitted that court noted in the decree in the present suit O.S. No. 191 of 1997 that in view of the memo filed by both parties stating that the defendant is giving up defence, the suit was decreed for specific performance, but she did not execute the registered sale deed and made the decree holders to approach the execution court. He further submitted that the fact that she has filed compromise memo giving up defence in O.S. No. 191 of 1997 was recorded in point no. 11 in the decree dated 03.09.1997 passed on compromise in the connected suit O.S. No. 236 of 1996 before the II Additional Subordinate Judge, Kakinada, in which the 1st plaintiff is the 1st JDr herein and the 1st defendant is the 1st DHr herein. 9. Order XXI Rule 105(2) CPC, by an amendment w.e.f. 01.02.1977, enables execution Court to dismiss an execution petition for want of prosecution by the DHr. 9. Order XXI Rule 105(2) CPC, by an amendment w.e.f. 01.02.1977, enables execution Court to dismiss an execution petition for want of prosecution by the DHr. Order 21 Rule 106(1) enables the execution court to set aside such order, provided the court is satisfied with sufficient cause for nonappearance on the day of passing the default order. Further Rule 106(3) prescribes a period of limitation of 30 days to file an application to set aside the order dismissing the EP for default. Though Section 5 of Limitation Act (Central Act) is made not applicable to an application under provisions of Order XXI of CPC which deals with execution; by virtue of an amendment by the State of A.P. adding Sub-Rule 4 to Rule 106 of Order XXI CPC w.e.f. 20.01.1992, the provision of Section 5 of the Limitation Act has been made applicable to all applications made under Sub-Rule 3 of Rule 106 of Order XXI CPC. Therefore, the objection raised to entertain the petition under Section 5 of the Limitation Act has no merit. 10. The decree was passed on 27.08.1997 and originally EP No. 206 of 2007 was filed within the period of 12 years and the same was renumbered as E.P. No. 243 of 2010 on transfer of the execution petition from the court of I Additional Junior Civil Judge to the court of Principal Junior Civil Judge. 11. Now, what is to be seen is whether the petitioner is able to show sufficient cause for the delay of 1138 days in filing petition to set aside the order dismissing EP for default. The reason shown is that they do not have knowledge of the dismissal of EP as it was not informed and the petitioner was under the impression that EP was pending till the notice in caveat was received. Such statement is not shown to be untrue basing on any material on record. Though the aspect of W.P. No. 7498 of 2005 was not stated before the execution Court, its significance cannot be overlooked. As rightly pointed out, till the writ petition was allowed, the execution Court may not be in a position to register the sale deed even on behalf of JDr. Though the aspect of W.P. No. 7498 of 2005 was not stated before the execution Court, its significance cannot be overlooked. As rightly pointed out, till the writ petition was allowed, the execution Court may not be in a position to register the sale deed even on behalf of JDr. For failure on the part of a counsel to rightly inform and take the matter forward should not be allowed to cause hardship to a party who is otherwise entitled to legal remedy. 12. As such, it is a fit matter to allow the petition by condoning the delay to file petition under Order 21, Rule 106(1) CPC to set aside the order dated 15.02.2011 dismissing EP for default. Moreover, it is also to be borne in mind that though the decree holder is entitled to file any number of execution petitions so long as the same is not barred by limitation and not finally disposed on merits; in the present case, since by the time of filing the petition to restore EP, the period of limitation expired, there may be no other chance for decree holder to file another E.P. to get the benefit of the decree. Considering all these circumstances, it is a fit matter to allow the revision petition. 13. In the result, the revision petition is allowed, however subject to condition that the petitioner shall pay costs of Rs. 2,000/- (Rupees two thousand only) to the 1st respondent within ten (10) days from the date of receipt of copy of this order. 14. Miscellaneous Petitions, if any pending, in this Civil Revision petition, shall stand closed.