Jharkhand High Court
Shambhu Lal Agarwal vs Shankar Rajak & Anr on 7 November, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Writ Jurisdiction)
WP(C) No. 5299 of 2019
Shambhu Lal Agarwal ..... ...... Petitioner
Versus
Shankar Rajak & Anr. .... .... Respondents
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CORAM : HON'BLE MR. JUSTICE KAILASH PRASAD DEO
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For the Petitioner : Mr. Amar Kumar Sinha, Advocate
For the Respondents :
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The matter is being taken up through Video Conferencing. Learned counsel for the parties
have no objection with it and submitted that audio and video qualities are good.
Order No.05/Dated: 07th November, 2022
Mr. Amar Kumar Sinha, learned counsel for the petitioner has
submitted that the petitioner is the decree holder of Title Suit No. 24 of 1998,
against which, he has preferred Execution Case No. 4 of 2000.
Learned counsel for the petitioner has further submitted that the
judgment-debtor has preferred First Appeal being FA No. 26 of 1997, which
was dismissed by the learned Additional District Judge, Simdega confirming
the judgment and decree passed by the trial court dated 06.06.2000. Against
the said judgment of the first appellate court the judgment debtor preferred
Second Appeal being SA No. 67 of 2000.
Learned counsel for the petitioner has further submitted that in
SA No. 67 of 2000, an application vide IA No. 858 of 2001 under Order 41
Rule 5 of the Code of Civil Procedure was filed by the judgment-debtor
appellant, which was rejected by this Court and the matter went to the
Hon'ble Apex Court in SLP (Civil) No. 16264 of 2001, in which, an interim
order was passed directing the parties to maintain the status quo till SA No.
67 of 2000 is pending before this Court and thus SLP was dismissed with the
interim order. However, the SA No. 67 of 2000 in terms of judgment dated
05.01.2018, was dismissed for default.
Learned counsel for the petitioner has further submitted, that in
the meantime, the judgment-debtor Kamla Devi has died, which was not
informed to the petitioner and the substitution petition could not be filed
within time and the learned executing Court in Execution Case No.4 of 2000
has passed an order that since the application was not filed within time and,
as such, in view of the judgment passed by the Hon'ble Patna High Court in
the case of "Suryakant v. Laxmikant" reported in AIR Patna 285, the Kerala
High Court in the case of Kochukunj Narayan v. Kochukunju v. Kochu
Valayadhan and the judgment passed by this Court in the case of "Sumitra
Devi v. State of Jharkhand" reported in 2005 (3) JLJR 57, the execution
case has been dismissed as abated.
Mr. Amar Kumar Sinha, learned counsel for the petitioner has
submitted that the executing court has taken a hyper technical issue though
there is provision under Order XXII Rule 4 of the Code of Civil Procedure in
case of death of one of several defendant or sole defendants. Learned counsel
for the petitioner has relied upon Order XXII Rule 4 (5)(b), which reads as
follows:
"(b) the plaintiff applies after the expiry of the period
specified therefor in the Limitation Act, 1963 (36 of
1963), for setting aside the abatement and also for the
admission of that application under section 5 of that Act
on the ground that he had, by reason of such ignorance,
sufficient cause for not making the application within the
period specified in the said Act,
The Court shall, in considering the application
under the said section 5, have due regard to the fact of
such ignorance, if proved."
It has specifically been mentioned that the Court shall in
considering the application under Section 5 of the Limitation Act, have due
regard to the the fact of such ignorance and the Court can set aside the
abatement and also condone the delay under Section 5 of the Limitation Act
if it has reason to condone on sufficient cause shown that the application was
not filed earlier.
Learned counsel for the petitioner has relied upon the judgment
passed by the Hon'ble Apex Court in the case of "Balwant Singh (Dead) v.
Jagdish Singh & Ors." reported in (2010) 8 SCC 685.
Let notice be issued upon the legal heir of Kamla Devi, namely,
Shankar Rajak, son of late Binod Dhobi (respondent No.1 herein) and Baby
Devi, wife of late Vijay Raja (respondent No.2 herein), resident of Lower
Bazar, Main Road, Simdega, PO, PS & District: Simdega under speed post,
for which, requisites etc. must be filed by Friday.
Office is directed to track the speed post.
Put up this case after service of notice.
(Kailash Prasad Deo, J.)
Madhav/-
