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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO.206 OF 2016
APPELLANTS: 1. Smt. Prabhabai Wd/o Pandurang
Khandekar, Aged about 67 yrs, Occ.
Ori. Defendants
Household,
before first
appellate Court.
2. Shri Parasram S/o Pandurang
Khandekar, Aged about 57 yrs, Occ.
Service,
ig 3. Shri Namdeo S/o Pandurang
Khandekar, Aged about 36, Occ. Service,
Appellant Nos1,2,3 R/o Bhilgaon, Tah.
Kamptee, Dist. Nagpur.
4.
Ku. Sheela D/o Pandurang Handekar,
(Smt. Sheela W/o Dharmendra Babade)
Aged about 27 yrs, Occ. Household, R/o
Village Saoli, Tah. Parshioni, Dist.
Nagpur.
-VERSUS-
RESPONDENT: Fulchand S/o Chintaman Selokar, Aged
about 58 yrs, Occ. Agriculturist, R/o
(Ori. Plaintiff in
Dhilgaon, Tah. Kamptee, Dist. Nagpur.
first appellate
Court)
Shri S. M. Pande, Advocate for the appellants.
Shri R. R. Dawda, Advocate for the respondent.
CORAM: A.S. CHANDURKAR, J.
DATED: 5 th MAY, 2016.
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ORAL JUDGMENT :
1. Pursuant to the notice for final disposal of the appeal issued on 26-4-2016, the learned Counsel for the parties have been heard at length on the following substantial question of law:
Whether the delay in filing the appeal is liable to be condoned in view of the provisions of Section 14 of the Limitation Act, 1963?
2. The respondent is the original plaintiff in Special Civil Suit No.506 of 2003. This suit was filed for seeking specific performance of agreement dated 27-3-2002 in respect of the agricultural land admeasuring 0.31R. The original defendant -
Pandurang was served with the suit summons. He, however, expired during pendency of the suit and the present appellants who are his legal heirs were brought on record. The written statement filed earlier by Pandurang came to be adopted. The trial Court on 16-2-2008 decreed the suit. The respondent herein filed Special Darkhast No.159/2008 on 24-4-2008. The present appellants entered their appearance therein on 29-7-2008. On 19-9-2008, the appellants filed an objection to the execution proceedings below Exhibit-15. A reply to the aforesaid objection ::: Uploaded on - 13/05/2016 ::: Downloaded on - 10/06/2016 21:07:48 ::: sa206.16.odt 3/11 was filed by the decree holder on 9-3-2011. The executing Court by order dated 28-3-2014 rejected the objection raised by the appellants. This order dated 28-3-2014 was challenged by the appellants in Writ Petition No.4325/2014. By judgment dated 27-11-2015, the writ petition came to be dismissed upholding the order of the executing Court. On 18-12-2015, the appellants filed an appeal under Section 96 of the Code of Civil Procedure, 1908 along with an application for condoning delay in filing said appeal.
This application was opposed by the respondent by filing reply. By the order dated 29-1-2016, the appellate Court rejected the application for condonation of delay. Hence, the present second appeal.
3. Shri S. M. Pande, the learned Counsel for the appellants submitted that the appellate Court ought to have condoned the delay in preferring the appeal under Section 96 of the Code. He submitted that the appellants were pursuing their remedies in the execution proceedings that had been filed by the respondent. According to him, the period from 29-7-2008 when the appellants were served in the execution proceedings till the dismissal of the writ petition filed by them on 27-11-2015 should be treated as the period that was spent bonafidely in prosecuting another remedy. He submitted that a specific objection to the ::: Uploaded on - 13/05/2016 ::: Downloaded on - 10/06/2016 21:07:48 ::: sa206.16.odt 4/11 validity of the decree had been raised in the execution proceedings and the entire period that had been spent for prosecuting the same deserves to be taken into consideration. Relying upon the provisions of Section 14 of the Limitation Act, 1963 (for short, the said Act), it was submitted that the time spent in pursuing the aforesaid objection before the executing Court stands explained.
Considering the nature of objecion raised by the appellants which was with regard to validity of the decree passed, it could be said that the challenge was bonafide and, therefore, this period deserves to be excluded. He submitted that the appellate Court without considering these aspects of the matter proceeded to reject the application for condonation of delay. In support of his submissions, the learned Counsel placed reliance on the judgments of the Hon'ble Supreme Court in M. P. Steel Corporation v.
Commissioner of Central Excise, (2015) 7 Supreme Court Cases 58 and N. Balakrishnan V. M. Krishnamurthy (1998) 7 Supreme Court Cases 123. He also relied upon the judgment of learned Single judge in Vinodkumar Vs. Kailashkumar 2011(1) Mh.L.J. 269. He, therefore, submitted that the delay deserves to be condoned and the proceedings deserve to be decided on merits.
4. Aforesaid submissions are opposed by Shri R.R.
Dawda, the learned Counsel for the respondent. According to him, ::: Uploaded on - 13/05/2016 ::: Downloaded on - 10/06/2016 21:07:48 ::: sa206.16.odt 5/11 the appellants were not entitled to have the delay condoned as there was no proper explanation for the same. There was no due diligence on the part of the appellants. Even the objection filed in the executing Court was after the period of limitation for filing the appeal and, therefore, the appellate Court had rightly rejected the said application. He urged that the period from 29-7-2008 till 27-11-2015 could not be excluded by relying upon the provisions of Section 14 of the said Act. It was then submitted that the conduct of the appellants was such that they permitted the decree to be passed by the trial Court and did not file any appeal within the prescribed period of limitation. According to him, the proceedings were being prolonged by the appellants on one count or the other. He referred to the application for condonation of delay and submitted that no sufficient cause had been mentioned therein to have the delay condoned. In support of his submissions, the learned Counsel placed reliance on the decision in Kamlabai vs. Ganpat 2007(1) Mh.L.J. 807 and M/s K.M. Palve v. State of Maharashtra and Anr. 2008 AIHC 50. It was, therefore, submitted that no substantial question of law arose for consideration.
5. With the assistance of the learned Counsel for the parties, I have perused the documents filed on record. The dates mentioned herein above are not in dispute. The material dates ::: Uploaded on - 13/05/2016 ::: Downloaded on - 10/06/2016 21:07:48 ::: sa206.16.odt 6/11 which require consideration while answering the substantial question of law are that the suit was decreed on 16-2-2008 and after the execution proceedings were filed on 24-4-2008, the appellants had appeared on 29-7-2008. The objections filed by them were rejected by the executing Court on 28-3-2014 and the writ petition challenging said order was dismissed on 27-11-2015.
The appeal along with application for condonation of delay was filed on 18-12-2015.
6.ig The aspect of applicability of the provisions of Section 14 of the said Act in aforesaid background requires consideration.
The Hon'ble Supreme Court in M. P. Steel Corporation (supra) after considering its earlier judgments observed in para 49 of its judgment that the object of Section 14 of the said Act is that if its conditions are otherwise met, the applicant should be put in the same position as he was when he started an abortive proceeding.
There has to be absence of negligence or inaction. It has been held that the time spent in prosecuting another civil proceeding with due diligence needs to be construed in a manner which advances the object sought to be achieved.
The expression 'other cause of like nature' in Section 14 of the said Act has been considered in Roshanlal Kuthalia & others Vs. R. B. Mohan Singh Oberoi (1975) 4 SCC 628 and it has ::: Uploaded on - 13/05/2016 ::: Downloaded on - 10/06/2016 21:07:48 ::: sa206.16.odt 7/11 been held that any circumstance either legal or factual which inhibits entertainment or consideration by the Court of the dispute on merits comes within the scope of Section 14 of the said Act and a liberal touch must inform the interpretation of the said Act which deprives the remedy of one who has a right.
7. If in the light of the aforesaid legal position the facts of the present case are examined, it can be seen that after service of the proceedings for execution initiated by the respondent, the appellants had entered appearance on 29-7-2008. They filed their objections on 19-9-2008 and the same came to be rejected on 28-3-2014. The order of the executing Court was confirmed by this Court on 27-11-2015. Thus, by considering the objection raised to the validity of the decree in the execution proceedings itself, as a bonafide attempt of pursuing a legal remedy it can be said that at least from 29-7-2008 till 27-11-2015, the appellants would be entitled to the benefit of exclusion of said time on principles analogous to Section 14 of the said Act. These proceedings turned out to be abortive and applying the expression 'other cause of like nature' the aforesaid period can be taken into consideration.
8. It is, however to be noted that the Civil Court decreed suit on 16-2-2008. Even if the period from 29-7-2008 and onwards ::: Uploaded on - 13/05/2016 ::: Downloaded on - 10/06/2016 21:07:48 ::: sa206.16.odt 8/11 is permitted to be excluded by relying upon the provisions of Section 14 of the said Act, it would be necessary to consider whether any sufficient cause has been shown by the appellants for the period prior to their appearance in the execution proceedings.
It would be necessary to note the observations in para 52 of the judgment of the Hon'ble Supreme Court in M. P. Steel Corporation (supra) While considering the question whether the period prior to institution of a proceeding that turns out to be abortive could be also excluded, it was observed by the Hon'ble Supreme Court as under:
"52..................................................................... The period prior to institution of the initiation of any abortive proceeding cannot be excluded for the simple reason that Section 14 does not enable a litigant to get a benefit beyond what is contemplated by the Section--that is to put the litigant in the same position as if the abortive proceeding had never taken place."
9. From the aforesaid observations, it is clear that the period prior to institution or initiation of the abortive proceedings cannot be excluded by relying upon the provisions of Section 14 of the said Act. The prior period would have to be considered in the light of provisions of Section 5 of the said Act. It would, therefore, be necessary to consider the averments made by the appellants in the application for condonation of delay with regard to said ::: Uploaded on - 13/05/2016 ::: Downloaded on - 10/06/2016 21:07:48 ::: sa206.16.odt 9/11 period. In para 3 of the application, there is reference to the decree being passed on 16-2-2008 by the trial Court. In para 4 and onwards, there is reference to filing of execution proceedings by the respondent. It is pertinent to note that after the judgment dated 16-2-2008 or some short period thereafter till the service of the notice in the execution proceedings, there is no explanation furnished by the appellants for their inaction in taking any steps during said period. In fact, the application is totally silent in that regard. After referring to the passing of the judgment dated 16-2-2008, a reference has been made directly to the raising of objection in the execution proceedings. It is not the case pleaded that the appellants were not aware that the suit was decreed on 16-2-2008 and that they got knowledge about it for the first time when they received the notice in the execution proceedings. The judgment of the trial Court dated 16-2-2008 indicates that they were duly represented by their counsel in the trial Court. There is, therefore, complete absence of any reason whatsoever with regard to the time spent from 16-2-2008 till 29-7-2008. This period is of more than five months. Even if it is assumed that the period of thirty days was available for filing an appeal and that period was liable to be excluded, there is no explanation for the remaining period. Thus, even if the appellants are placed in the same position ::: Uploaded on - 13/05/2016 ::: Downloaded on - 10/06/2016 21:07:48 ::: sa206.16.odt 10/11 as if the abortive proceedings had never taken place, they were required to at least furnish some reason/explanation for the period after passing of the decree on 16-2-2008 till their appearance in the execution proceedings on 29-7-2008. In absence of such explanation, the delay for said period cannot be condoned under Section 5 of the said Act. The observations in Kamlabai Shrimal and anr as well as in M/s K. M. Palve (supra) support the submissions made in that regard on behalf of the respondent.
10.ig Thus, from the aforesaid, it can be said that though the appellants were pursuing other proceedings from 29-7-2008 till 27-11-2015 which period can be excluded on principles analogous to Section 14 of the said Act, the period from 16-2-2008 and the delay till 29-7-2008 remains unexplained. In the light of this aspect, it cannot be said that the appellate Court was not justified in rejecting the application for condonation of delay. As observed in N. Bala Krishnan (supra), if the first Court refuses to condone the delay, it is open for the superior Court to consider the entire matter afresh and come to its own finding. Thus, after considering the entire matter afresh and in absence of any explanation for the aforesaid period, I do not find that the appellate Court has committed any error in rejecting the prayer for condonation of delay. The substantial question of law is answered by holding that ::: Uploaded on - 13/05/2016 ::: Downloaded on - 10/06/2016 21:07:48 ::: sa206.16.odt 11/11 though the period from 29-7-2008 till 27-11-2015 can be excluded on principles analogous to Section 14 of the said Act as time spent in prosecuting the other proceedings, there is absence of any explanation for the period of delay from 16-2-2008 till 29-7-2008.
11. In view of aforesaid, there is no case made out to interfere. The second appeal is dismissed with no order as to costs.
JUDGE //MULEY// ::: Uploaded on - 13/05/2016 ::: Downloaded on - 10/06/2016 21:07:48 :::