ORDER
R.C. Lahoti, J.
1. 'Judiciary is respected not on account of its powers to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.' (Collector, Land Acquisition v. Smt. Katiji, infra). This is the beacon light which must be held high while crossing the cross-roads of this case. The appellants make a call for justice mercifully praying that they should at least be heard, posing a question, would anyone anywhere hear them? The respondents rely on technicalities but forcefully submit that law supports their stand to contend that the appellants must be rebuffed at the threshold.
2. Before the executing Court, the appellants herein being judgment-debtors, raised certain objections to the executability of the decree submitting that the decree-holder had received a few amount which the appellants were entitled to adjust. The executing Court held on 24-3-1979 that the objections could not be entertained in view of the payments having not been certified in accordance with Order 21, Rule 2, Civil Procedure Code. The objections were pending at least since 1975. The decree and the execution application were of dates much before.
3. During the pendency of the abovesaid proceedings the Code of Civil Procedure underwent substantial changes by virtue of Civil Procedure Code (Amendment) Act, 1976 (Act No. 104 of 1976). The definition of 'decree' in section 2(2) was amended deleting sub-section (2) of section 47, Civil Procedure Code with the effect of taking away the right of appeal from orders in execution proceedings. The appellants, as advised, preferred a revision petition to this Court, registered as C. R. No. 424/89. The revision was filed on 25-6-1989. It was admitted for hearing parties. On 2-8-1979 came a Division Bench decision of this Court in Chuluram v. Bhagatram, 1980 MPLJ 37 = 1979 JLJ 730 published in November issue of Jabalpur Law Journal holding that an order determining objections in execution of a decree made prior to enforcement of the amendment would continue to be appealable though the order was passed after the amendment came into force. When the case came up for hearing on 29-1-1980, this Court expressed an opinion that the question was still res integra because of a reference made to a Full Bench in another Civil Revision of this Court and the decision of the Full Bench was to be awaited. That Civil Revision came to be decided by a Division Bench only, on 4-4-1980 reaffirming the earlier view. Hence, on 29-4-1980 when this revision came up for hearing, it was dismissed as not maintainable in view of the Division Bench decisions having settled the law on the point.
4. An appeal was filed before the District Court on 3-5-1980 along with an application under section 5 read with section 14, Limitation Act, seeking condonation of time lost in prosecuting the proceedings in revision before the High Court. The District Judge refused to condone the delay holding that there was no justification for excluding the time spent in prosecuting the revision after 1979 when the appellants would be presumed to have become well aware of the legal position that an appeal and not a revision would lie. Another reason assigned by the learned District Judge is that the appellants were duty bound to explain each and every day's delay after expiry of the period of limitation and the appellants failed in explaining the period lost between 29-4-1980 and 2-5-1980.
5. The learned counsel for the appellants has submitted that in view of the recent amendments in the Code of Civil Procedure, the appellants were advised in filing a revision before the High Court and not an appeal before the District Judge and that opinion was a reasonably considered opinion and hence a revision was filed and the time lost in proceedings before the High Court was the time lost bona fide and there is nothing to show that the revision was not being prosecuted with due diligence. In any case the delay in preferring an appeal before the District Court was based on sufficient cause. Assuming that there was a controversy on the legal question as to whether an appeal lay or a revision, the appellants could not be made to suffer for an act of a legal adviser who was mistaken in giving them a proper advice either on account of ignorance of legal position or otherwise.
6. Having heard the learned counsel at length I am of the opinion that the impugned order deserves to be set aside. In G. Ramegowda v. The Special Land Acquisition Officer, Bangalore, AIR 1988 SC 897 Their Lordships observed : -
'There is, it is true, no general principle saving the party from all mistakes of its counsel. If there is negligence, deliberate or gross inaction or lack of bona fides on the part of the party or its counsel there is no reason why the opposite side should be exposed to a time-barred appeal. Each case will have to be considered on the particularities of its own special facts. However, the expression 'sufficient cause' in section 5 must receive a liberal construction so as to advance substantial justice and generally delays in preferring appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of the delay.'
In Collector, Land Acquisition v. Katiji, (1987) 2 SCC 107 = AIR 1987 SC 1353 Their Lordships were posed with an expression 'sufficient cause'. Realising a touch of elasticity in the phrase and feeling the necessity of applying law in a meaningful manner to subserve the ends of justice, their Lordships summed up the principles as under : -
'1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties,
3. 'Every day's delay must be explained' does not mean that a pendentice approach should be made. Why not every hour's delay, every second's delay. The doctrine must be applied in a rational common sense pragmatic manner.
4. When substantial Justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides.
A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.'
7. In our system of administering justice there is rarely a legal battle fought without the aid of lawyers. The litigant places his fate along with papers in the hands of a lawyer, placing implicit reliance on advice received. Though ignorance of law is never a permissible defence which may be raised by a litigant, that factor cannot be lost sight of while determining the questions of bona fides and mala fides. Litigants do not know the niceties of law. Invariably the Courts have been holding litigants protected by legal advice given by lawyers even if found to be mistaken, unless, of course, there be a culpable negligence, deliberate inaction or lack of bona fides imputable to the Advocate. Counsel's default constitutes sufficient cause for a litigant bona fide acting on it, has been the consistent view of this Court. A diligent prosecution of proceedings before a wrong forum in the absence of mala fides has been accepted as a valid gound for exclusion of time by Their Lordships of the Supreme Court in Matadin v. A. Narayanan, 1970 MPLJ S.N. 118 and by this Court in Rewaram v. State of M. P., 1986 II MPWN 224.
8. Now the application of abovesaid legal principles to the facts of the present case. It cannot be denied that different High Courts were taking conflicting views on the effect of 1976 amendments on the right of appeal from orders in pending proceedings. So far as this Court is concerned, the law was settled for the first time by a Division Bench of this Court in Chuluram's case (supra). Even thereafter the turmoil did not subside as the controversy was sought to be settled only through a Full Bench pronouncement and all ended only with the opinion recorded by a Division Bench reaffirmed the earlier Division Bench view. It cannot be contended even by stretching imagination that the counsel's advice to file a revision was outcome of negligence or lacked in bona fides.
9. It cannot be accepted for a moment that the appellants had deliberately filed a revision instead of an appeal. It is well known that the scope of hearing in revision is much limited than that of an appeal and ordinarily a litigant or a lawyer would prefer to choose the forum of appeal, if available. The appellants did not stand to benefit in any manner whatsoever by filing a revision. It has to be held that the appellants preferred a revision before the High Court only bona fide though wrongly. I have called for and perused the record of Civil Revision No. 424/79 and I am convinced that it was diligently prosecuted having been filed within the prescribed period of limitation.
10. In so far as the period lost between 29-4-1980 and 3-5-1980 is concerned, it stands well explained. The application under sections 5/14, Limitation Act duly supported by an affidavit indicates that the dismissal of revision was conveyed to the appellants only on 2-5-1980. It is well known that cases before the High Court are listed for hearing as per the cause-list prepared on the previous day, usually brought to the notice of lawyers concerned at the end of the previous day and ordinarily no fixed date is given. The litigants are not supposed to be personally present on the date of hearing, of which they do not normally have any notice. It is not unreasonable to suggest that the revision having been dismissed on 29-4-1980, a period of 2-3 days was lost in communicating the same to the appellants. The delay has been sufficiently explained. Loss of 3 days cannot be said to be unreasonable considering the fact that the order was required to be communicated by the lawyer to his client and thereafter some margin of time has to be allowed for seeking directions, preparation of applications and affidavits etc., if that is to be done with due care.
11. For all the foregoing reasons I am of the opinion that the Court below did not exercise its jurisdiction properly in not condoning the delay and in not extending the benefit of sections 5/14 of the Limitation Act to the appellants. A failure of justice has been occasioned prejudicing the valuable right of the appellants. The impugned order has to be set aside therefore.
12. Shri B. S. Agarwal, learned counsel for the respondents tried to set up a stone-block in the way of the appellants by citing Balkrishna v. Tulsabai, AIR 1987 M.P. 120 saying that the appeal having been dismissed as time-barred, there was no appeal in the eye of law before the Court below and hence the impugned order of the lower appellate Court would not amount to a decree and no second appeal would lie. Shri P. L. Jain, the learned counsel for the appellants without disputing the proposition canvassed by Shri Agarwal usefully utilises the stone-block as a stepping stone by reading aloud paras 7 and 8 from Balkrishna (supra). This Court held the appeal to be not maintainable, but at the same time observed that the jurisdictional error of the Court below having been noticed, this Court would be justified in exercising its jurisdiction under Article 227 of the Constitution for setting right the wrong done. Support was derived from another earlier decision of this Court. I am also convinced that the illegal order should not be allowed to operate thwarting the ends of justice, more so, when this appeal has remained pending before this Court over 7 years and it would be a futile exercise to push the appellants to the necessity of invoking writ jurisdiction of this Court where the result would be the same.
13. For all the foregoing reasons, the impugned order dated 5-3-1982 passed by the District Judge, Gwalior is set aside. The application of the appellants under sections 5/14, Limitation Act filed before the District Court is allowed. Consequently, the appeal thereat is held to have been filed within limitation. The appeal shall now be heard and disposed of on merits. No order as to costs.
14. Parties are directed through their respective counsel to appear before the lower appellate Court on 26-9-1989 before which date the Registry shall see that the record reaches there along with a copy of this order.