DADI SANTHAKUMARI Versus SATHVAHANA CO OP H B S LTD- SEC.5 OF LIMITATION ACT -The conduct of the petitioners clearly show that they have been moving from Court to Court and having failed at every stage or now moving this Court by way of an appeal with inordinate delay of 4622 days. In the circumstances, this Court must held that the petitioners are not made out a ground of “sufficient cause” to condone this extraordinary in filing the appeal.

The conduct of the petitioners clearly show that they have been moving from Court to Court and having failed at every stage or now moving this Court by way of an appeal with inordinate delay of 4622 days. In the circumstances, this Court must held that the petitioners are not made out a ground of “sufficient cause” to condone this extraordinary in filing the appeal. 

AP HIGHCOURT

HON’BLE SRI JUSTICER. RAGHUNANDAN RAO

I.A.Nos.1, 2 and 3 of 2019 & A.S.No.695 of 2019

DADI SANTHAKUMARI
Versus

SATHVAHANA CO OP H B S LTD

COMMON ORDER:

 The present appeal is filed by a third party to the

suit.

2. The facts which give rise to the present appeal and

applications are as follows:

3. The 1st respondent/plaintiff had entered into

agreements of sale dated 19.05.1986 with one Namburi Babu

Rao and his family members, who are arrayed as defendant

Nos.1 to 3 in the suit in relation to Ac.4.51 cents of land in

Sy.No.325/1 and 2 of Sathivanipalem, hamlet of Narava Village

of Pendurthi Mandal, Visakhapatnam District. The plaintiff had

also entered into another agreement of sale dated 19.05.1986 to

an extent of Ac.4.22 cents in Sy.No.325/3 of Sathivanipalem,

hamlet of Narava Village of Pendurthi Mandal, Visakhapatnam

District, where one Sri Namburi Venkata Ratnam and his family

members, who are arrayed as defendants 4 to 8 in the suit.

4. Thereafter, Kararnamas dated 13.07.1989 were

entered into between the parties to the suit in relation to the

aforesaid agreements of sale. After these agreements, a deed of

sale was executed by Sri Namburi Venkata Ratnam on

15.11.1989 to an extent of 6660 sq. yards in favour of the

plaintiff; sale deed dated 02.09.1989 was executed by Sri

Namburi Babu Rao in relation to 1800 sq. yards in favour of the 

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plaintiff; and a sale deed dated 11.09.1989 to an extent of 3000

sq yards in favour of the plaintiff. Thereafter, it appears that

both branches of the family had executed a General Power of

Attorney dated 27.04.1992 in relation to Ac.8.72 cents of land

for development of the land, in favour of the representatives of

the plaintiff. As some disputes had arisen between the parties,

the plaintiff had filed O.S.No.1136 of 2005 in the Court of the I

Additional District Judge, Visakhapatnam for specific

performance of the agreements of sale dated 13.07.1989.

5. This suit was decreed on 24.11.2006 by way of an ex

parte order. After the suit had been decreed E.P.No.34 of 2007

was filed by the plaintiff for execution of the judgment and

decree passed by the trial Court.

6. In a parallel development the appellants herein

claimed that Ac.12.33 cents of land in Sy.No.325/1, 2 and 3

were alienated to the appellants herein by way of deeds of sale

dated 29.11.1994, 21.12.1994, 22.12.1994 and 29.12.1994.

These deeds of sale are said to have been executed by the

General Power of Attorney holder of the defendants in the suit. It

is now the case of the appellants herein that in the course of the

proceedings in E.P.No.34 of 2007, the appellants became aware

of the ex parte order and the pendency of E.P.No.34 of 2007 and

had filed E.A.No.102 of 2014 under Section 47 C.P.C., praying

the Executing Court to declare that the judgment and decree

under execution is not executable and to close E.P.No.34 of

2007. This application was dismissed by the Executing Court on 

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01.08.2018. Aggrieved by the said order, the appellants herein

had filed C.R.P.No.6858 of 2018, which came to be dismissed on

28.08.2019. Thereafter, the appellants herein filed a suit

bearing RG.R.No.3495 of 2019 for the relief of cancellation of the

decree and judgment passed by the learned I Additional Senior

Civil Judge, Visakhapatnam in O.S.No.1136 of 2005 dated

24.11.2006 and consequent permanent injunction.

7. The plaintiff in O.S.No.1136 of 2005 had filed

I.A.No.549 of 2019 under Order VII Rule 11 C.P.C., for rejection

of plaint. This I.A. was allowed by order dated 12.07.2019 by the

Principal Senior Civil Judge, Visakhapatnam and the plaint was

rejected. Aggrieved by the same, the appellants herein had filed

C.R.P.No.2782 of 2019. This C.R.P. was dismissed with liberty

to the petitioners to avail the remedy in accordance with law.

8. At this stage, the present appeal has been filed by

the appellants against the judgment and decree of the trail

Court dated 24.11.2006 in O.S.No.1136 of 2005.

9. I.A.No.1 of 2019 has been filed to condone the delay

of 4622 days in filing the above appeal; I.A.No.2 of 2019 has

been filed to grant leave to file the appeal; and I.A.No.3 of 2019

has been filed to grant stay of execution of the decree in

E.P.No.128 of 2019 in O.S.No.1136 of 2005 (E.P.No.34 of 2007)

on the file of the Senior Civil Judge, Gajuwaka, Visakhapatnam.

10. The plaintiff in O.S.No.1136 of 2005, who is arrayed

as respondent No.1 in the present appeal has come on record 

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and filed a counter affidavit and an additional counter affidavit

opposing all the three interlocutory applications.

11. The 1st Respondent herein submits that:

A. The suit schedule and other lands in Survey No. 325,

admeasuring Ac 21.06 cents, belonged to one Sri

Namburi Sitapathi Rao. After his demise, a suit of

Partition, bearing O.S. No. 83 of 1994, was filed on

account of the dispute between the two branches of his

family consisting of Sri Namburi Babu Rao and Sri

Namburi Venkataratnam on one hand ( the vendors of

both the Appellants and the 1st Respondent herein) and

the branch of Sri N.V.V.L. Narasimha Rao on the other

hand. A compromise was arrived at between the parties

and the suit was disposed off in terms of the said

compromise by order dated 5.8.1994, wherein the

vendors of the Appellant and the 1st Respondent herein

were allotted Ac.10.53 cents in Survey No. 325/1,2 and

3. As these vendors were not coming forward to complete

the sale transaction, the 1st Respondent herein had filed

the above suit for specific performance of the agreements

of sale which was decreed.

B. After the filing of E.P. No. 34 of 2007, the Appellant

herein approached the executing court , by way of E.A.

No. 102 of 2014, wherein the Appellants had stated that

they had knowledge of the proceedings from 2012 and

their application was dismissed by the executing court on

the basis of findings of fact that the GPA under which the

land is said to have been purchased by the Appellants

relates to some other land and the land in dispute was

shown as a boundary to the land mentioned in the GPA;

the compromise deed allotted only Ac.10.22 cents and the

Appellants could not have been sold Ac. 12.33 cents; the 

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1st Respondent herein is in possession of the suit

schedule property.

C. The Appellants had filed a suit bearing GR. No. 194 of

2019 suppressing the fact that CRP 6858 of 2018 filed

against the order of dismissal of E. A . 102 of 2014 was

pending. This Plaint was also rejected by the Trial

Court, by way of order dated 12.7.2019, holding that all

the questions raised in the suit were already adjudicated

in E.A.No. 102 of 2014. This order was challenged by way

of CRP No. 2782 of 2019 which was dismissed on the

ground that an appeal would lie against an order passed

under Order VII Rule 11 of CPC.

D. The 1st Respondent has been put in possession of the suit

schedule property by virtue of the Kararnamas in the

year 1989 itself.

E. In the Additional Counter the 1st Respondent contended

that the 4th Appellant is not a bonafide appellant and is

involved in may criminal cases and as such does not

require the indulgence of this Court.

 12. On the basis of these pleadings , the 1st Respondent

contended that the Appellants have been filing one litigation or

the other to ensure that the 1st Respondent is denied the fruits

of the decree and no grounds have been made out to condone

the delay of 4622 days on the ground of having pursued their

remedies before the wrong forum; there are no grounds to grant

leave and that grant of stay of proceedings in the execution

petition would put the members of the 1st Respondent society to

grave loss and suffering. 

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13. Sri S. Subba Reddy appearing for the appellants

submits that a perusal of the agreements of sale dated

19.05.1986 and kararnama dated 13.07.1989, which is the

basis for the claim of the 1st respondent, would go to show that

only the land in Sy.No.325/1 and 2 had been made the subject

matter of the agreements and as such the suit could not have

been filed in relation to the land in Sy.No.325/3 also. He further

submits that the trial Court without going into this aspect had

passed an ex parte judgment and decree directing sale of the

land in Sy.No.325/3 also. He also submits that the judgment

and decree would have to be satisfied on that short ground

alone and as such leave to file the appeal should be granted.

14. As far as the question of condonation of delay is

concerned, Sri S. Subba Reddy submits that the appellants

came to know of the judgment and decree and the pendency of

the execution petition only in the year 2014 and had been

pursuing their remedies at every stage, because of which, an

appeal had not been filed earlier and the present delay of 4622

days had arisen. He submits that the said delay is clearly

explained by the conduct of the various proceedings to defend

the rights of the appellants and in any event the application is

only filed by way of abundant caution and not because of any

delay on the part of the appellants.

15. Sri V.V. Satish appearing for the respondents

submits that all the issues raised in the present appeal have

already been raised in E.A.No.102 of 2014 and all the said 

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issues have already been decided against the appellants. Sri

V.V. Satish also contended that even though the application was

filed section 47 of CPC, the grounds raised in the application

and the findings given by the executing court would mean that

the application was treated as an application under Order XXI

Rule 97 of CPC and as such the appeal itself would be hit by

the principle of res judicata and relied upon the judgment of the

Hon’ble Supreme Court in Balraj Taneja v. Sunil Madan1. Sri

V.V. Satish pointed to paragraphs 15 to 17, 19, 21 and 31 to

submit that the said findings of the Executing Court would be

binding on the appellants herein and as such they cannot reagitate these issues in the present appeal.

16. In reply, Sri Subba Reddy submitted that E.A. 102

of 2014 was filed only under section 47 of CPC and an order

passed in an application under that provision of law has very

limited scope and would not amount to Res Judicata. He relied

upon the judgement of the Hon’ble Supreme Court in Balraj

Taneja’s case for this proposition.

17. Heard both parties. Before going into the merits of

the case, a preliminary objection raised by Sri V. V. Satish

would have to be dealt with. Sri V.V. Satish took the plea that

the threshold for filing appeal before the High court was

increased to Rs.10 lakhs by virtue of an amendment to the Civil

Courts Act and as this appeal has been filed after the said date,

1

 AIR 1999 SC 3381 

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the appeal which is valued at R.9,96,575/- would not be

maintainable before the high Court.

18. This objection would not be tenable in view of the

Judgment of a Larger Bench of the erstwhile High Court of

Andhra Pradesh in the case of Vallabhaneni Lakshmana

Swamy v. Valluru Basavaiah and others2 wherein it was held

that the forum for appeal available at the stage of the filing of

the suit would continue to be the appellant forum even if the

pecuniary jurisdiction is changed subsequently

I.A.No:- 1

19. The case of the petitioners is that they came to know

of the filing of O.S.No.1136 of 2005 and subsequent Judgment

and Decree dated 24.11.2006 in the year 2014. Thereafter, the

petitioners are said to have initiated proceedings in E.P.No.128

of 2019 by way of E.A.No.102 of 2014 filed under Section 47 of

CPC which was dismissed on 01.08.2018. Thereafter, appellant

filed C.R.P.No.6858 of 2018 which came to be dismissed on

28.08.2019. While, the matter was pending the petitioners also

filed a suit bearing No.RGR.No.3485 of 2019 for the relief of

cancellation of Decree and Judgment in O.S.No.1136 of 2005

which came to be rejected on 12.07.2019 on account of the

defendants herein filing I.A.No.549 of 2019 for rejection of

plaint. Thereafter, the petitioners filed C.R.P.No.2728 of 2019

2

 2004 (5) ALD 807 : 2004 (5) ALT 755 

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which also came to be dismissed to permit the petitioner to avail

the remedy in accordance with law.

 20. It is the case of the petitioner that in view of all

these proceedings it can be seen that the petitioners had been

diligently pursuing its remedy and trying to protect its right over

the property by approaching the Courts under the above

proceedings.

 21. Sri S.Subba Reddy, learned counsel for the

petitioners herein relied upon the Judgments of Hon’ble

Supreme Court in the case of O.P.Kathpalia v. Lakhmir Singh

(Dead) and others3, State of Nagaland v. Lipok Ao &

others4, N.Balakrishnan v. M.Krishna Murthy5 and Maniben

Devraj Shah v. Municipal Corporation of Brihan Mumbai6.

22. Sri S.Subba Reddy relies upon these Judgments for

the proposition that applications under Section 5 of the

Limitation Act have to be dealt with liberally and refusal to

condone the delay could lead to failure of justice.

 23. Sri V.V.Satish, learned counsel for the respondents

opposes the application to condone the delay on the ground that

the delay of 4,622 days cannot be condoned as the delay was

caused more on account of the refusal of the petitioners to

approach this Court by way of an appeal and the appellants

cannot now turn around to seek condonation of delay.

3

 AIR 1984 SC 1744

4

 AIR 2005 SC 2191 equivalent (2005) 3 SCC 752

5

 AIR 1998 SC 3222 equivalent (1998) 7 SCC 123

6

 AIR 2012 SC 1629 equivalent (2012) 5 SCC page 157 

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24. Sri V.V.Satish contended that the petitioners had

admitted in the affidavit filed in support of their application in

E.A.No.102 of 2014 that they were aware of the Judgment and

Decree dated 24.11.2006 in the year 2012 itself. However, the

said affidavit has not been placed before this Court. A perusal

of the facts set out in the order of the Executing Court in

E.A.No.102 of 2014 only states that public news paper was done

in May, 2012 by the respondent No.1 herein against the

petitioners and that one of the petitioner got issued a reply

stating that the petitioners are the owners of the property

covered by the schedule. This statement does not show that the

petitioners were aware of the decree under appeal in the year

2012 itself. Further, no such pleading is available either in the

counter-affidavit or in the additional counter-affidavit filed by

the respondents in this application. It would therefore have to

be taken that the respondents herein is not disputing the

contentions of the petitioners that the petitioners got knowledge

of the filing of the suit and the consequential decree in the year

2014.

CONSIDERATION OF THE COURT:-

 25. It is true that applications under Section 5 of the

Limitation Act ought to be dealt with liberally to ensure that

complete justice is done and such refusal does not lead to

multiplicity of proceedings. However, the Judgments cited by

Sri S.Subba Reddy may not be of any avail as these are

Judgments dealing with Section 5 of the Limitation Act. In the 

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present case, the justification or explanation given for delay is

the pendency of proceedings before various courts. In such

circumstances, the application should be treated as an

application under Section 14 of the Limitation Act and cannot

be treated as an application under Section 5 of the Limitation

Act. Sri V.V.Satish contends that since the application was

moved under Section 5 of the Limitation Act, it would have to be

dealt with in accordance with the parameters of Section 5 of the

Limitation Act and cannot be treated as an application under

Section 14 of the Limitation Act.

 26. I must reject this contention in as much as it is

settled law that an application will not be dealt with by the

Court on the basis of the provision under which the application

is said to have been filed. The Court would look into the

pleadings in the application and apply the correct provision of

law in accordance with the said pleadings. The Court is not

bound to consider an application filed only under the provision

of law mentioned in the said application.

27. Section 14 of the Limitation Act reads as follows:

 14 Exclusion of time of proceeding bona fide in

court without jurisdiction;

(1) In computing the period of limitation for any suit

the time during which the plaintiff has been

prosecuting with due diligence another civil

proceeding, whether in a court of first instance or of

appeal or revision, against the defendant shall be

excluded, where the proceeding relates to the same

matter in issue and is prosecuted in good faith in a 

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court which, from defect of jurisdiction or other

cause of a like nature, is unable to entertain it.

(2) In computing the period of limitation for any

application, the time during which the applicant has

been prosecuting with due diligence another civil

proceeding, whether in a court of first instance or of

appeal or revision, against the same party for the

same relief shall be excluded, where such

proceeding is prosecuted in good faith in a court

which, from defect of jurisdiction or other cause of a

like nature, is unable to entertain it.

(3) Notwithstanding anything contained in rule 2 of

Order XXIII of the Code of Civil Procedure, 1908 (5 of

1908), the provisions of sub-section (1) shall apply

in relation to a fresh suit instituted on permission

granted by the court under rule 1 of that Order

where such permission is granted on the ground

that the first suit must fail by reason of a defect in

the jurisdiction of the court or other cause of a like

nature. Explanation. For the purposes of this

section,

(a) in excluding the time during which a former civil

proceeding was pending, the day on which that

proceeding was instituted and the day on which it

ended shall both be counted;

(b) a plaintiff or an applicant resisting an appeal

shall be deemed to be prosecuting a proceeding;

(c) misjoinder of parties or of causes of action shall

be deemed to be a cause of a like nature with defect

of jurisdiction.

28. In the present case, the application under Section

47 of C.P.C. was disposed of on merits. The C.R.P.No.6858 of 

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2018 filed against the said order was disposed of with the

following observations:

a) In the course of hearing, having regard to the

nature of contentions put-forth by the petitioners

when it is open for the petitioners to raise all such

objections, if they are so advised, in terms of Order

XXI Rules 97 and 99 C.P.C. in the Executing Court

and when the same is brought to the notice of

learned counsel for the petitioners by this Court,

learned counsel for the petitioners sought leave to

withdraw the revision petition, to pursue their

remedies in the Execution Petition in terms thereof.

b) Learned counsel for the DHR wanted a rider to

be attached in this process that it shall be subject to

the question as to limitation.

c) In view of what is stated above, the learned

counsel for the petitioners is permitted to withdraw

this civil revision petition and leave is granted to the

revision petitioners to pursue their remedies in terms

of Order XXI Rules 97 and 99 C.P.C., in the

Executing Court shall be subject to any legal and

tenable objections of DHR and JDRs. There shall be

no order as to costs.

 29. Thereupon, the petitioner had filed RGR.No.3485 of

2019 which was rejected by an order dated 12.07.2019 on the

ground that the cause of action in the suit is the same as the

cause of action which has already been decided in E.A.No.102 of

2014 and a second round of litigation is not maintainable. The

Civil Revision Petition No.2782 of 2019 filed by the petitioners

herein was dismissed with liberty to petitioners to avail remedy 

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in accordance with law as rejection of plaint can be challenged

only by way of an appeal.

 30. E.A.No.102 of 2014 was decided on merits and not

rejected on the ground of defect of jurisdiction or other cause of

a light nature. The C.R.P.No.6858 of 2018 filed against the said

order also disposed off in view of the nature of contentions put

forth by the petitioners and was withdrawn with leave to seek an

appropriate remedy. Thereafter, R.G.R.No.3485 of 2019 was

filed and the same was rejected on the ground that the cause of

action in the suit and the cause of action in E.A.No.102 of 2014

are same. This proceeding also not disposed of on the ground

that there is inherent defect off jurisdiction or other cause of a

light nature. The petitioners instead of filing an appeal against

the rejection of plaint had filed a C.R.P.No.2782 of 2019 which

was dismissed on the ground that the remedy was by way of

appeal and not a revision.

 31. In these circumstances, the petitioners have not

been able to demonstrate that they would come within the

exclusion of time of proceeding bona fide in Court without

jurisdiction.

 Section 5 of the Limitation Act reads as follows.

Extension of prescribed period in certain cases - Any appeal

or any application, other than an application under any of

the provisions of Order XXI of the Code of Civil Procedure,

1908 (5 of 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. Explanation - The 

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fact that the appellant or the applicant was misled by any

order, practice or judgment of the High Court in ascertaining

or computing the prescribed period may be sufficient cause

within the meaning of this section.

 32. As held above, this is not a case which falls within

the ambit of Section 5 of the Limitation Act. Even if, Section 5

of the Limitation Act is applicable to the facts of the case, the

applicant has not satisfied the requirement of “sufficient cause”

for not preferring this appeal. The conduct of the petitioners

clearly show that they have been moving from Court to Court

and having failed at every stage or now moving this Court by

way of an appeal with inordinate delay of 4622 days. In the

circumstances, this Court must held that the petitioners are not

made out a ground of “sufficient cause” to condone this

extraordinary in filing the appeal.

 33. As the delay in filing the appeal is not being

condoned. I am not going into the question of whether leave

should be granted or not.

 34. Consequently, I.A.Nos.2 and 3 would also stand fail

and dismissed, A.S.No.695 of 2019 also stand dismissed.

 As a sequel, pending miscellaneous petitions, if any,

shall stand closed.

____________________________

R. RAGHUNANDAN RAO, J.

 _____-11-2020.

JS/SDP. 

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HON’BLE SRI JUSTICE R. RAGHUNANDAN RAO

I.A.Nos.1 and 2 of 2019 in A.S.No.695 of 2019

___-11-2020

sdp.