Uttarakhand High Court
WPMS/3795/2019 on 6 June, 2023
Office Notes,
reports, orders or
SL. proceedings or
Date COURT'S OR JUDGES'S ORDERS
No directions and
Registrar's order
with Signatures
WPMS No.3795 of 2019
Hon'ble Manoj Kumar Tiwari, J.
Mr. S.K. Jain, Senior Advocate,
assisted by Mr. Siddhartha Sah and Ms.
Sunayna Kohli Kothari, Advocates for the
petitioner.
Mr. S.C. Mishra, Standing Counsel
for the State of Uttarakhand.
Mr. Aditya Singh, Advocate for
respondent no. 3.
Mr. Sahil Mullick, Advocate for
respondent no. 5.
Heard learned counsel for the
parties.
Petitioner has challenged the order
dated 21.08.2018 passed by Assistant
Collector, Ist Class, Ranikhet in Mutation
Appeal No.12/2016-17 and also the
judgment & order dated 07.11.2019
passed by learned Additional
Commissioner, Kumaon, Nainital in
Revision No. 115/2017-18/20/18-19.
2. The facts, on which there is no
dispute, are that petitioner filed an
application for mutation under Section
34 of U.P. Land Revenue Act, based on a
sale deed dated 20.03.2013. The said
application was allowed by Tehsildar,
Ranikhet vide order dated 21.06.2013.
Petitioner, thereafter, sold the land in
question in favour of respondent no. 5
by means of sale deed dated
29.11.2013. It is contended that name of
respondent no. 5 was also mutated in
revenue records pursuant to order dated
01.12.2015 passed by Tehsildar,
Ranikhet. In the year 2017, respondent
no. 3 filed an Appeal under Section 210/
211 of U.P. Land Revenue Act
challenging the mutation orders dated
21.06.2013 and 01.12.2015 passed by
Tehsildar, Ranikhet. Petitioner filed
objection contending that the Appeal is
barred by time and there is no
application seeking condonation of delay,
therefore, the Appeal is liable to be
dismissed. Learned Assistant Collector,
however, rejected the objection raised
by petitioner vide order dated
21.08.2018. Petitioner challenged the
said order by filing a Revision, which has
been dismissed by learned Additional
Commissioner, Kumaon, Nainital vide
judgment dated 07.11.2019. Both these
orders have been put to challenge by the
petitioner.
3. Learned Assistant Collector
has relied upon the provision contained
in Article 123 of the Schedule to
Limitation Act for rejecting the objection
raised by petitioner on the question of
limitation, which is reproduced below:-
123. To set aside a decree Thirty The date of
passed ex parte or to days. the decree or
re-hear an appeal where the
decreed or heard ex summons or
parte. notice was
not duly
Explanation.--For the served, when
purpose of this article, the applicant
substituted service had
under Rule 20 of knowledge of
Order V of the Code of the decree.
Civil Procedure, 1908
(5 of 1908) shall not
be deemed to be due
service.
4. From plain reading of Article
123 of the Limitation Act, 1963, it is
apparent that it would be applicable to
an application for setting aside a decree
passed ex-parte or to an application for
re-hearing an Appeal decreed or heard
ex-parte. This is not a case here, as
there is no application for setting aside a
decree passed ex-parte or for re-hearing
an Appeal. Thus, Article 123 of the
Schedule to Limitation Act cannot be
invoked in case of an Appeal.
5. Even otherwise also, a
mutation order passed in summary
proceedings under U.P. Land Revenue
Act cannot be termed as a decree. Thus,
the reason assigned for rejecting
petitioner's objection on the question of
limitation cannot be sustained in the
eyes of law.
6. Accordingly, the writ petition is
allowed and the impugned order dated
21.08.2018 passed by Assistant
Collector, Ist Class, Ranikhet and the
judgment & order dated 07.11.2019
passed by learned Additional
Commissioner, Kumaon, Nainital are
liable to be set aside and are hereby set
aside. The matter is remanded back to
learned Assistant Collector for deciding
the issue of limitation afresh.
Respondent no. 3 shall be at liberty to
move appropriate application before the
Assistant Collector.
(Manoj Kumar Tiwari, J.)
06.06.2023
Arpan
