Judge vs Pottengal Subida And Ors.
2021 Latest Caselaw 5117 AP

      THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO

           CIVIL REVISION PETITON No.2707 of 2019

ORDER:-

      The 2nd respondent in this Civil Revision Petition had filed

O.S.No.43 of 2009, against the 1st respondent, for recovery of

money in the Court of Additional Senior Civil Judge, Eluru.

This suit was decreed and thereafter, the 2nd respondent had

filed E.P.No.196 of 2015 before the Additional Senior Civil

Judge, Eluru, for recovery of the decretal amount. The

petitioner herein, who is the wife of the 1st respondent filed

E.A.No.202 of 2017 claiming that her husband/1st respondent

had, by way of a settlement deed gifted, to her, the property

which had been attached for sale.

2. The 2nd respondent had contested this application.

The 2nd respondent had pointed out that the property sought to

be sold had originally been attached before judgment by the trial

Court, by an order in I.A.No.285 of 2009. Thereafter, the 1st

respondent to evade payment of the amount had created a gift

deed in favour of the petitioner, who is his wife. Upon coming to

know of this transaction which is a fraud on him, the 2nd

respondent had filed Creditor I.P.No.37 of 2009 before the

Additional Senior Civil Judge, Eluru who had, by his judgment

and order, set aside the said deed of settlement.

3. The petitioner, in view of these contentions of the 2nd

respondent, is said to have withdrawn her application in

RRR,J CRP.No.2707 of 2019

E.A.No.202 of 2017. Thereafter, the petitioner herein filed

A.S.S.R.No.1916 of 2018 against the order of the Insolvency

Court, dated 01.09.2017 in Creditor I.P.No.37 of 2009. As this

appeal was filed with a delay of 369 days, the petitioner had

filed I.A.No.2467 of 2018 for condonation of the said delay of

369 days.

4. The contention of the petitioner was that she was

under the impression that the insolvency petition had been

dismissed in December, 2017 and realized that the application

was actually allowed only when the 2nd respondent raised this

issue in proceedings in E.P.No.196 of 2015. It is claimed that

immediately after coming to know of the said order, the

petitioner had applied for a certified copy and filed the appeal as

soon as the certified copy was made available.

5. The 2nd respondent contested the application.

6. The appellate Court took into account the

contentions raised by the petitioner and dismissed the

application for condoning delay in I.A.No.2467 of 2018 by an

order dated 18.04.2019.

7. Aggrieved by the said order, the petitioner has filed

the present Civil Revision Petition.

8. Sri B.P.Raju, learned counsel for the petitioner

would submit that the petitioner was unwell and had gone to

Hyderabad and had not taken any further steps as she was

under the impression that the insolvency petition had actually

been dismissed. He relied upon a Judgment of the Hon'ble

RRR,J CRP.No.2707 of 2019

Supreme Court in Ummer Vs Pottengal Subida and Ors., 1 to

contend that applications of condonation of delay should be

treated liberally and the clause "sufficient case should be

understood in a liberal and expansive way". He submits that

rejection of the appeal on the ground of delay would effectively

take away the substantive rights of the petitioner to contest the

matter and as such, requires to be allowed.

9. The condonation delay petition was supported by an

affidavit dated 08.11.2018. This affidavit states that the decree

and judgment in I.P.No.37 of 2009 was passed on 01.09.2017

and the appeal should have been filed on 01.10.2017. The

petitioner states, in this affidavit, that she was under the

impression that the insolvency petition had been dismissed long

back and that she had stayed with her son in Hyderabad due to

ill-health for six months and had forgotten the pending

proceedings until her property was brought to sale by the 2nd

respondent in December, 2017. She claims that she was

unaware of the cancellation of her settlement deed until it was

brought to her notice on 09.10.2018, after which she withdrew

her application in the execution petition and had moved the

present appeal. In support of her contention that she was

unwell, the petitioner has relied on a doctor certificate dated

30.10.2017. This certificate shows that she had been admitted

to the intensive care unit of a hospital in Eluru on 20.10.2017

where she was diagnosed with jaundice and discharged on

30.10.2017 with the medical advice to take bed rest up to

2018 (3) ALT 11 (SC)

RRR,J CRP.No.2707 of 2019

09.12.2017. The statement of the petitioner in the affidavit that

she had gone to Hyderabad and had remained there for six

months due to ill-health is contradicted by the medical

certificate dated 30.10.2017 which says she was admitted to a

hospital in Eluru and had been advised bed rest up to

09.12.2017. In any event, the explanation that she had simply

forgotten about her case and that she was under the impression

that the insolvency petition had been dismissed is not supported

by any material. Except stating that she was under the

impression that the insolvency petition had been dismissed, the

petitioner does not state the source of information on the basis

of which such an impression had been created in her mind.

Further, the petitioner was a party in Creditor I.P.No.37 of 2009

and was represented by an advocate in the said proceedings. In

the circumstances, the contention of the petitioner that she was

under the impression that the insolvency petition has been

dismissed and that she was unable to take any further steps on

account of residing at Hyderabad does not inspire any

confidence.

10. It is true that the Hon'ble Supreme Court has taken

the view that a condone delay application should be considered

liberally. However, such a liberal consideration would arise only

where there is a modicum of sufficient cause to explain the

delay. In the present case, the settlement deed was set aside on

01.09.2017 in the presence of her counsel and no explanation is

given as to why the petitioner thought she had succeeded in

RRR,J CRP.No.2707 of 2019

protecting her settlement deed. The subsequent conduct of the

petitioner is also not explained.

11. In the circumstances, the petitioner has not made

out any cause for condonation of delay much less sufficient

cause.

12. In the present circumstances, there is no irregularity

by the appellate Court which requires any interference by this

Court.

13. Accordingly, this Civil Revision Petition is dismissed.

There shall be no order as to costs.

Miscellaneous petitions, pending if any, in this Civil

Revision Petitions shall stand closed.

___________________________________ JUSTICE R.RAGHUNANDAN RAO Date : 10-12-2021 RJS

RRR,J CRP.No.2707 of 2019

THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO

CIVIL REVISION PETITON No.2707 of 2019

Date : 10-12-2021

RJS