Shaikh Chand Shaikh Ahmed Died ... vs Zaitunbee Shaikhlal Died Through ...
2017 Latest Caselaw 6886 Bom

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                        WRIT PETITION NO. 10439 OF 2015

Shaikh Chand s/o Shaikh Ahmed,
died per legal representatives :-

1     Sk.Pashu s/o Sk.Chand,
      Age : 65 years,
      Occupation : Carpenter,
      R/o Laxman Chawadi,
      Aurangabad.

2     Sk.Ismail s/o Sk. Chand,
      Age : 63 years, 
      Occupation : Pvt. Service,
      R/o Laxman Chawadi,
      Aurangabad.

3     Sk.Ibrahim s/o Sk.Chand,
      Age : 60 years,
      Occupation : Business,
      R/o Laxman Chawadi,
      Aurangabad.

4     Sk.Issak s/o Sk.Chand,
      Age : 54 years, 
      Occupation : Pvt. Service,
      R/o Laxman Chawadi,
      Aurangabad.

5     Sk.Yakub s/o Sk.Chand,
      Age : 50 years, 
      Occupation : Mechanic,
      R/o Laxman Chawadi,
      Aurangabad.
                                       ...PETITIONERS
                                       (Orig. Defendants)
      -VERSUS-

Zaitunbee w/o Shaikhlal,




    ::: Uploaded on - 12/09/2017                 ::: Downloaded on - 13/09/2017 01:24:37 :::
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died per legal representatives:-
1     Khatoonbee w/o Sk. Amir,
      Age : 64 years,
      Occupation : Household,
      R/o House No.4-19-38,
      Laxman Chawadi,
      Mondha Road, Aurangabad.

2         Najmabegum w/o Sadaruddin,
          Age : 62 years,
          Occupation : Household,
          R/o Thakurdas Girni,
          Juna Mondha, Aurangabad.
                                                  ...RESPONDENTS
                                                  (Orig. Plaintiffs)

                                        ...
    Advocate for Petitioners : Shri P.R.Katneshwarkar h/f Shri Mohammad 
                                 Waseemullah. 
    Advocate for Respondents : Shri Adwant S.V. a/w Ms.Neha B. Kamble.
                                        ...

                                       CORAM:  RAVINDRA V. GHUGE, J.

DATE :- 07th September, 2017

Oral Judgment :

1 Rule. Rule made returnable forthwith and heard finally by the

consent of the parties.

2 The Petitioners are aggrieved by the order dated 04.07.2015

by which MARJI No.527/2012 filed by the Petitioners seeking restoration

of Regular Darkhast No.119/1997 has been rejected.

3 I have considered the strenuous submissions of the learned

Advocates for the respective sides.

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4              The Petitioners rely upon the following judgments:-

    (a)        Maharashtra   State   Electricity   Board   vs.   Niranjan  

Alloys Steels Private Limited, Aurangabad, 2007 (2)

Mh.L.J. 229.

(b) Smt.Suglabai w/o Prabhu Jaishete and another vs.

Rangrao s/o Govindrao (since dead through his L.Rs.)

and others, 2011 (1) AIR Bom. R 858 : 2011(6)

Bom.C.R. 403 : 2011(1) All.M.R. 858.

5 The Respondents rely upon the following judgments:-

(a) Damodaran Pillai and others vs. South Indian Bank,

AIR 2005 SC 3460.

(b) Mhatarba Laxman Dongare vs. Central Bank Of India

and others, 2005(2) ALL MR 742.

(c) Dattatraya Raghunath Jog vs. Radhabai Laxmanrao

Ghate, 2007 (3) Mh.L.J. 425.

(d) Mahabir Sah vs. Bibi Jubeda Khatoon and others, AIR

2011 Patna 35.

6 After considering the submissions of the learned Advocates

and upon going through the judgments cited, the undisputed factors can

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be summarized as under:-

(a) The Petitioners herein are the original Defendants.

(b) Regular Civil Suit No.643/1987 led to the judgment and

decree dated 28.03.1990 with regard to House No.4-19-38

situated at Laxman Chawadi, Aurangabad.

(c) Regular Civil Appeal No.150/1990 was filed by the

Defendants which was decided by the Appellate Court on

17.11.1993 and the appeal was partly allowed and the decree

was modified.

(d) The Petitioners preferred Second Appeal No.131/1994 and by

the judgment dated 25.08.1994, this Court concluded that

since Zaitunbee had no title to the suit property and is

allowed to occupy the property only as a licencee of the

Defendants, the decree passed shall be operative till the

lifetime of Zaitunbee and thereafter, the Defendants would be

entitled to get back the possession by the due process of law.

(e) As Zaitunbee passed away on 02.12.1996, the execution

proceeding Regular Darkhast No.119/1997 was instituted.

(f) After considering the submissions of the parties and the

objections of the Judgment Debtors, the Executing Court

passed the order dated 12.02.1999 by which the possession

warrant was issued.

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     (g)        By order  dated 13.12.2010, Regular Darkhast No.119/1997 

                was disposed of for want of steps.

     (h)        The   Decree   Holders   preferred   MARJI   No.527/2012   on 

12.06.2012 and prayed for condonation of delay of one year,

04 months and 22 days in filing the application for restoration

of the execution proceedings.

(i) By the impugned order dated 04.07.2015, the MARJI

No.527/2012 has been rejected for the reason that sufficient

grounds were not cited.

7 The thrust of the submissions of the Petitioners herein is that

after the hearing was concluded, no further hearing was contemplated.

Upon deciding all the objections of the Judgment Debtors, the Executing

Court had issued the possession warrant and in that backdrop, the

dismissal of the execution proceedings for want of steps would not be an

order passed under Order 21 Rule 105 of the Code of Civil Procedure.

Hence, Rule 106 of Order 21 and especially sub-rule (3) of Rule 106 of

Order 21 of the Code of Civil Procedure r/w Section 5 of the Limitation

Act, 1963 would not be applicable to this case.

8 Per contra, the strenuous submissions of the Respondents are

two fold. Firstly, the dismissal of the execution proceedings is under Order

21 Rule 105 and as such, the restoration application could have been

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entertained only within 30 days from the date of the order of dismissal.

The ratio laid down in Damodaran Pillai (supra) would become applicable.

Secondly, Section 5 of the Limitation Act would not apply to this case and

the execution proceedings are specifically excluded from the ambit of

Order 21 of the Code of Civil Procedure. Consequentially, there could be

no order of restoration of the execution proceedings. The other option

open to the Decree Holders is to prefer a fresh execution proceedings

provided it is within the limitation of 12 years from the date of the decree

as per Article 136 of the Limitation Act.

9 Considering the above, the first issue that needs to be dealt

with in this matter before touching the issue of Section 151 of the Code of

Civil Procedure, would be, whether, the order of dismissing the execution

proceedings for want of taking steps, would be covered by Rule 105 of

Order 21.

10 For ready reference, Rules 105 and 106 of Order 21 read as

under:-

"Order XXI Rule 105. Hearing of application.-

(1) The court, before which an application under any of the foregoing rules of this Order is pending, may fix a day for the hearing of the application. (2) Where on the day fixed or on any other day to which the hearing may be adjourned the applicant does not appear when the case is called on for hearing, the court may make an Order that the application be dismissed.

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     (3)        Where the applicant appears and the opposite party  

to whom the notice has been issued by the court does not appear, the court may hear the application ex parte and pass such Order as it thinks fit.

Explanation : An application referred to in sub-rule (1) includes a claim or objection made under rule

58."

"Rule 106. Setting aside order passed ex parte, etc.-- (1) The applicant, against whom an order is made under sub-rule (2) of rule 105 or the opposite party against whom an order is passed ex parte under sub-rule (3) of that rule or under sub-rule (1) of rule 23, may apply to the Court to set aside the order, and if he satisfies the Court that there was sufficient cause for his non- appearance when the application was called on for hearing, the Court shall set aside the order on such terms as to costs, or otherwise as it thinks fit, and shall appoint a day for the further hearing of the application.

(2) No order shall be made on an application under sub-

rule (1) unless notice of the application has been served on the other party.

(3) An application under sub-rule (1) shall be made within thirty days from the date of the order, or where, in the case of an ex parte order, the notice was not duly served, within thirty days from the date when the applicant had knowledge of the order."

11 Notwithstanding the strenuous submissions of the

Respondents/ Judgment Debtors, this issue finds an answer in the

judgment in the matter of Damodaran Pillai (supra). In paragraph 8 of the

said judgment, the Honourable Supreme Court considered the undisputed

position that the execution petition was was dismissed in terms of the

provisions of Rule 105 of Order 21. It was noted that the matter was fixed

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for hearing under sub-rule (1) of Rule 105. As the matter was called out

for hearing and since the matter went unattended, the same was

dismissed.

12 In the above facts, the Honourable Supreme Court in

Damodaran Pillai (supra), observed in paragraph 11 that in regard to the

limitation period for filing the restoration application in the execution

proceedings dismissed under Rule 105, Rule 106(3) would become

squarely applicable. It was held that if an order has been passed

dismissing the application in default, the restoration application must be

filed necessarily within a period of only 30 days from the date of the order

and not thereafter. It was held that the date when the Decree Holders

acquired the knowledge of the order of the dismissal of the execution

petition was, therefore, wholly irrelevant. In this backdrop, it was held

that when the Civil Court was expressly barred from condoning the delay,

Section 151 of the Code of Civil Procedure for invoking inherent powers

would not be applicable.

13 While distinguishing the execution proceedings dismissed at

the stage of hearing and dismissed at the stage post hearing, the

Honourable Supreme Court, in Damodaran Pillai (supra), considered the

view taken in some judgments delivered earlier. Paragraphs 18 and 19 of

Damodaran Pillai (supra) are relevant and they read as under:-

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"13. Similar views have been taken in M. Abdul Salam & Ors. Vs. Lourdusami Chettiar [AIR 1962 Madras 386], Sri Tankala Appalaswamy Gari Samba Murthy Vs. Gopasundara Sabatho [AIR 1963 AP 127] and Ganapathy Vs. Murugesa Chetty [1989 (2) L.W. 38].

19. Mr.Joshi, however, placed strong reliance upon Khoobchand Jain & Anr. Vs. Kashi Prasad & Ors. [AIR 1986 MP 66]. The said decision, in our opinion, has no application to the facts and circumstances of the present case. Therein the Execution Application was dismissed on a day which was not fixed for hearing. The said order of dismissal, therefore, was not passed in terms of sub-rule (2) of Rule 105 of Order XXI of Code of Civil Procedure. In that situation it was opined:

"In the present case, the decree-holders had already applied for execution and paid process-fee for issuance of a warrant of attachment. It was, therefore, for the Court to issue a warrant of attachment of such property as was in possession of the judgment-debtors. Submission of the inventory of moveable property in possession of the judgment- debtors is not necessary under the relevant rules. In case, the warrant is returned unexecuted, the decree- holders could, in their discretion, make an application for examination of the judgment-debtors under R.41 or could resort to any other mode to recover the decretal amount."

It was further observed:

"Since the dismissal of the execution application on 21.8.1979 was under inherent powers, the application for its restoration will be by invoking the inherent powers of the Court and in that event, no time limit is prescribed for invoking the inherent powers of the Court.""

(Emphasis supplied in this judgment)

14 The Honourable Supreme Court, while considering the view

taken in M.Abdul Salam (supra) and Khoobchand Jain (supra), did not

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conclude that the conclusions in Khoobchand Jain (supra) were bad in law.

It was thus, held that considering the law laid down in Khoobchand Jain

(supra) that while issuing the warrant of attachment of the suit property

as may be in the possession of the Judgment Debtors, the submission of

inventory of the movable property in possession of the Judgment Debtors

may not be necessary. The dismissal of the execution application post

hearing in the matter was, therefore, under the inherent powers and

hence, the application for it's restoration would also be by invoking the

inherent powers of the court and for which no time limit is prescribed.

15 It cannot be ignored that this Court is presently considering

only the issue of condonation of delay and not the reasons cited for

restoration of the execution proceedings. The order of disposal of the

execution proceedings dated 13.12.2010 reads as under:-

"The Decree Holder and his advocate when called out, they are absent. Matter is old, steps not taken since 2004. Today the Decree Holder and his Advocate was called several times till 5:00 pm but they did not turn to the Court. This shows Decree Holder is not interested in the matter. It would be worthless to keep the matter pending henceforth. Hence, case is disposed off for want of steps. Proceeding is closed."

16 Considering the above, as the hearing in the execution

proceedings was concluded and the possession warrant was also issued,

the said execution proceedings cannot be said to have been dismissed at

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the stage of hearing as no further hearing was contemplated. The case has

been disposed off.

17 This brings me to the issue of exercise of Section 151 of the

Code of Civil Procedure as was invoked by the Petitioners.

18 Section 151 of the Code of Civil Procedure reads as under:-

"151. Saving of inherent powers of Court-- Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."

19 The learned Advocate for the Respondents has cited the view

taken by this Court in Mhatarba Laxman Dongare (supra). Apparently, the

learned Single Judge of this Court did not have the assistance of the view

taken by the Honourable Supreme Court in Damodaran Pillai (supra) as

this Court delivered it's judgment in Mhatarba Laxman Dongare (supra) on

09.12.2004 and the Honourable Supreme Court decided the case of

Damodaran Pillai on 08.09.2005. In Mhatarba Laxman Dongare (supra),

the view taken by this Court was that for restoration of the execution

proceedings dismissed in default, Section 151 cannot be invoked. In that

case also, the execution proceedings were dismissed in default before the

attachment warrant was issued and at the stage of hearing.

20 The judgments cited by the learned Advocate for the

Respondents in Dattatraya Raghunath Jog and Mahabir Sah (supra), are in

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relation to the dismissal of the matter under Rule 105 of Order 21.

Considering the law laid down in Damodaran Pillai (supra), when the

hearing in the execution proceedings is concluded and the said

proceedings are disposed off, as in this case, after the stage of hearing in

the matter, the said disposal would be out of the purview of Rule 105 and

hence, would amount to dismissal/disposal under the inherent powers of

the Executing Court. Section 151 would, therefore, come into play.

21 In Maharashtra State Electricity Board case (supra), this Court

concluded that even in the matters where the plaint was rejected under

Order 7 Rule 11 of the Code of Civil Procedure, though the remedy of

filing an appeal was available, inasmuch as, the remedy under Order 7

Rule 13 would enable the Plaintiff to file a fresh suit, Section 151 of the

Code of Civil Procedure could be invoked for the restoration of the suit.

In Smt.Suglabai w/o Prabhu Jaishete (supra) , the execution

proceedings were dismissed and the record reveals that the dismissal

occurred as "No steps. Dismissed for want of prosecution. No costs." This

Court concluded that as no steps were taken resulting in the dismissal of

the execution proceedings for want of prosecution, Section 151 could be

invoked so as to enable the Court to exercise it's inherent powers.

Nevertheless, the facts of the case in hand would be covered by the

Damodaran judgment (supra).

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23               Considering   the   above,   Section   151   of   the   Code   of   Civil 

Procedure could have been invoked by the Executing Court in this matter

while considering MARJI No.527/2012.

24 This brings me to the last limb of the case as regards,

whether, sufficient grounds were set out by the Petitioners and what

would be the effect of the refusal to condone the delay of one year and 05

months under Section 151 of the Code of Civil Procedure.

25 The learned Advocate for the Respondents has made

strenuous efforts to indicate that the reasons cited by the Petitioners in

their application for condonation of delay, are insufficient and not

convincing. It is further canvassed that as the Petitioners were sleeping for

about 11 years after the possession warrant was issued, that the execution

proceedings were disposed of. It is in this backdrop that the Judgment

Debtors, by passage of more than 15 years, have settled in possession of

the property and it would be causing grave hardship if the execution

proceedings are to be resumed from the stage at which they were disposed

of.

26 It is altogether an independent issue as to whether, the

Executing Court would be convinced so as to restore the execution

proceedings. Adverting to the facts of this case, the issue before me is of

condonation of one year and five months delay. The Honourable Supreme

AIR 1987 SC Court, in Collector, Land Acquisition, Anantnag v/s Mst.Katiji,

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1353, while considering the philosophy behind the condonation of delay

and it's effects, has observed in paragraph 3 as under:-

"3. The legislature has conferred the power to condone delay by enacting Section 51 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on merits. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice that being the life- purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-

"Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period."

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 pedantic 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

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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.

6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the State which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even handed manner. There is no warrant for according a stepmotherly treatment when the State is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant-non-grata status. The Courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression "sufficient cause". So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even-handed justice on merits in preference to the approach which scuttles a decision on merits. Turning to the facts of the matter giving rise to the present

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appeal, we are satisfied that sufficient cause exists for the delay. The order of the High Court dismissing the appeal before it as time barred, is therefore, set aside. Delay is condoned. And the matter is remitted to the High Court. The High Court will now dispose of the appeal on merits after affording reasonable opportunity of hearing to both the sides."

27 It requires no debate that the Decree Holders would not

squander away the advantage of having achieved the decree, by

neglecting their proceedings and causing delay against their own interest.

The delay of one year and five months cannot be termed as being

deliberate or inordinate. The Decree Holders do not achieve any

advantage by delaying their proceedings. In fact, irreparable harm, serious

prejudice and manifest inconvenience would be caused to the Decree

Holders if the delay is not condoned. If a pedantic approach is to be taken

in this matter on account of the laxity on the part of the Decree Holders,

the Judgment Debtors would stand to gain undue advantage after they

have been held disentitled by an adjudicatory process leading to the

judgment and decree in favour of the Petitioners herein.

28 While taking a pragmatic view in this matter, hardships

suffered by the Decree Holders also need to be softened. As has been held

by the Honourable Supreme Court in catena of judgments that the delay

can be condoned by imposing suitable costs so that hardships suffered by

the other side can be reduced.

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       29                Taking   into   account   the   above   factors,   this   Writ   Petition   is 

allowed. The impugned order dated 04.07.2015 is quashed and set aside.

MARJI No.527/2012 is allowed and the delay of one year, four months

and 22 days is condoned, but by imposing costs of Rs.25,000/- (Rupees

Twenty Five Thousand) to be deposited by the Petitioners before the

Executing Court within a period of FOUR WEEKS from today. After the

said amount is deposited, Respondent Nos.1 and 2 in this petition, shall

receive equal share in the said costs and shall withdraw the said amount

in equal proportions without any conditions.

30 Needless to state, in the event of the failure of the Petitioners

in depositing the said amount within the time period prescribed, it would

lead to the restoration of the impugned order dated 04.07.2015 in which

case, this order shall stand recalled.

31 Rule is made absolute in the above terms.

kps                                                             (RAVINDRA V. GHUGE, J.)