Full Judgment
Civil Revision No.5857 of 2011 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Revision No.5857 of 2011 Date of decision : November 17, 2012 Dharmdev ....Petitioner versus Harpreet Singh and others ....Respondents Coram: Hon'ble Mr.Justice L.N.Mittal Present : Mr.Nandan Jindal, Advocate, for the petitioner Mr.SK Singla, Advocate, for respondent Nos.1 to 3 None for proforma respondent No.4 L.N.Mittal, J.
(Oral) Decree holder (DH) Dharamdev by filing this revision petition under Article 227 of the Constitution of India has assailed order dated 2.9.2011 passed by lower appellate court thereby condoning delay of 223 days (since 17.4.2007 till 29.11.2007) in filing appeal.
DH-petitioner allegedly advanced loan to proforma respondent No.4 judgment debtor (JD) on 21.11.1996 and filed suit for recovery of Civil Revision No.5857 of 2011 -2- money in the year 1999 and suit was decreed on 13.12.2001 and thereupon DH filed execution petition in which disputed land was attached and sold.
Respondents No.1 to 3 herein who are two sons and wife of the J.filed objections in the execution petition against sale of the disputed land alleging that they are owners of the said land pursuant to decree dated 23.1.1993 passed in their favour against JD-proforma respondent No.4 and mutation on its basis sanctioned on 5.9.2001.
On 17.4.2007, objections of respondents No.1 to 3 were disposed of by the executing court observing that none had appeared for the objectors since morning.
Objectors filed appeal on 30.11.2007 against the said order dated 17.4.2007 along with application for condonation of delay in filing the said appeal since 17.4.2007 till 29.11.2007.
It was alleged that the objectors were present in the executing court on 17.4.2007 and they had gone to call their counsel when the case was called by the executing court, but the counsel was busy in another court and at about 4.00 PM, the counsel told the objectors the next date of hearing as 30.4.2007.
However, when the executing court passed final order dated 25.10.2007 confirming the sale, then the objectors learnt that their objections have been disposed of on 17.4.2007.
On these averments, condonation of delay in filing the appeal was sought.
DH by filing reply opposed the application for condonation of Civil Revision No.5857 of 2011 -3- delay and controverted the averments made by the object ORS.It was pleaded that the objectors intentionally remained silent till passing of final order by the executing court.
Learned lower appellate court after framing issues and recording evidence allowed the application for condonation of delay in filing the appeal vide order dated 2.9.2011 which is under challenge in this revision petition.
I have heard learned counsel for the parties and perused the case file.
Counsel for the petitioner contended that the objectors could not have remained silent since after 17.4.2007 till 25.10.2007 when the sale was confirmed by the executing court and during this intervening period, the objectors should have contacted their counsel to knot the status of their objections.
It was thus argued that there was no sufficient ground to condone the delay in filing the appeal.
It was also argued that liberal approach in the matter of condonation of delay cannot over rule the substantive law of limitation because sufficient cause has to be shown for condonation of delay which has not been shown in this case.
Reliance in support of these contentions has been placed on various judgments namely Lanka Venkateswarlu (dead) by LRs.Versus State of Andhra Pradesh and otheRs.(2011) 4 Supreme Court Cases 363; P.K.Ramachandran Civil Revision No.5857 of 2011 -4- versus State of Kerala, 1998(3) PLR 605.Raju versus Lalitpal Singh, 2008(1) RCR (Civil) 831; Punjab State versus Onkar Nath, 1998(4) RCR (Civil) 669; Kulwant Kaur versus State of Punjab, 1999(2) Civil Court Cases 663; Sir Chhotu Ram Senior Secondary School, Village Rasulpur, Yamuna Nagar versus The New India Assurance Company LTD.& OtheRs.2010(4) RCR (Civil) 260; Smt.
Madhuribai versus Grasim Industries Ltd., 1995(2) Civil Court Cases 161 and M/s Mauria Udyog versus Shubh Karan Saboo, 1998(2) RCR (Civil) 433.
On the other hand, counsel for respondents No.1 to 3-objectors contended that the lower appellate court has rightly condoned the delay in filing the appeal because the objectors/appellants before the lower appellate court had shown sufficient cause for the same.
I have carefully considered the matter.
Statement of Harpreet Singh respondent No.1 in the witness box remained unrebutted.
DH did not lead any evidence in rebuttal thereof.
Having filed objections, the objectors would not have got the same disposed of without contest and adjudication on merits.
Objectors are, of course, sons and wife of the J.and consequently, the objectors may be interested in delaying execution of the decree.
However, counsel for respondents No.1 to 3 pointed out that decree of the disputed land in favour of objectors had been passed as early as on 23.1.1993 i.e.3 years 10 months even prior to the alleged Civil Revision No.5857 of 2011 -5- advancement of loan by DH to J.and apparently long before the filing of suit and passing of decree and filing of execution petition and attachment and sale of the land in execution petition.
It was pointed out that the disputed land had even been mutated in favour of objectors even before the suit was decreed in favour of DH.
Lower appellate court has exercised its discretion in the matter.
The said exercise of discretion cannot be said to be perveRs.or illegal or beyond jurisdiction so as to call for interference in exercise of power of superintendence under Article 227 of the Constitution of India except to the extent that the lower appellate court should have imposed costs on the objectors for condoning the delay.
DH-petitioner is suffering by the delay in the execution proceedings.
Objectors being family members of the J.might be interested in delaying the execution proceedings.
Nevertheless, the appeal preferred by the objectors is required to be adjudicated upon on merits.
The discretion exercised by the lower appellate court by condoning delay has been exercised in judicious manner and does not require interference except regarding imposition of costs.
Judgments cited by counsel for the petitioner are distinguishable on facts.
In most of those cases, the delay was long and inordinate.
The said delay had also not been explained at all.
In the instant case, it may be added that delay in fact is not of 223 days because that was the total period which lapsed between passing Civil Revision No.5857 of 2011 -6- of order and filing of appeal and out of it, limitation period of 30 days had to be deducted.
So the delay would be of about 193 days only.
In the aforesaid circumstances, the instant revision petition is disposed of by modifying the impugned order of the lower appellate court to the extent that respondents No.1 to 3 shall pay ` 10,000/- as costs precedent for condonation of delay in filing the appeal.
( L.N.Mittal ) November 17, 2012 Judge 'dalbir'