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 SANTHAKUMARIVersusSATHVAHANA 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.
