Madras High Court
Gandhimathi vs M.Sivasamy on 10 December, 2020
Author: R.Mahadevan
Bench: R.Mahadevan
C.R.P(MD)No.2273 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 10.12.2020
CORAM
THE HON'BLE MR.JUSTICE R.MAHADEVAN
C.R.P(MD)No.2273 of 2014
and
M.P(MD).No.1 of 2014
Gandhimathi ... Petitioner / Petitioner /
Appellant
Vs.
1. M.Sivasamy
2. K.Valarmathi
3. Abinash .... Respondents/
Respondents / Respondents
Prayer: Civil Revision Petition filed under Section 115 of Code of Civil
Procedure, to set aside the fair order and decreetal order dated
13.08.2014 passed in I.A.No.251 of 2013 in C.M.A.S.R.No.6349 of
2013, on the file of the Principal District Judge, Karur.
For Petitioner : Mr.M.Subash Babu
For Respondents : Mr.V.Balaji for R1
No Appearance for R2 and R3
http://www.judis.nic.in
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C.R.P(MD)No.2273 of 2014
ORDER
Challenging the order dated 13.08.2014 passed by the learned Principal District Judge, Karur, in I.A.No.251 of 2013 in C.M.A.SR.No. 6349 of 2013, the petitioner has come up with the present Civil Revision Petition.
2. The petitioner herein is a third party and the first respondent is the decree holder and the respondents 2 and 3 are the judgment debtors.
3. The facts leading to the filing of this Civil Revision Petition are as follows:
The second respondent is the close relative of the petitioner and she had executed a power of attorney in respect of the suit mentioned properties in favour of the petitioner. The first respondent obtained a money decree against the second respondent in O.S.No.387 of 1998, based on a promissory note. To realise the decree amount, he filed an Execution Petition in E.P.No.60 of 2007 and brought the suit mentioned properties belonging to the second respondent for sale through Court auction. The sale was conducted on 04.03.2009 and one Balasubramanian was declared as a successful bidder and he deposited a http://www.judis.nic.in 2/19 C.R.P(MD)No.2273 of 2014 sum of Rs.1,01,000/- towards part of the sale consideration and the case stood adjourned for deposit of the remaining sale consideration. In such circumstances, the petitioner under the guise of power of attorney executed in her favour by the second respondent, filed E.A.No.67 of 2009, under Order 21 Rule 89 CPC, praying to set aside the sale conducted through Court auction on 04.03.2009. The said application was dismissed. Challenging the same, the petitioner filed an appeal along with an application in I.A.No.251 of 2013, seeking to condone the delay of 271 days in preferring the appeal. The Court below refused to condone the delay and accordingly, rejected the appeal. Feeling aggrieved, the petitioner is before this Court with the present Civil Revision Petition.
4.The learned Counsel appearing for the petitioner submitted that though the petitioner preferred E.A.No.67 of 2009 along with the lodgement schedule with respect to deposit of the decree amount and other incidental expenses, well within the time limit, the lower Court failed to consider the same and dismissed the said application as if the petitioner has not deposited the decree amount into the court as provided under Order 21 Rule 89 and 92 CPC and Article 127 of the Limitation http://www.judis.nic.in 3/19 C.R.P(MD)No.2273 of 2014 Act. Thereafter, the petitioner, instead of filing a Civil Miscellaneous Appeal before the District Court, preferred a civil revision petition before this Court in C.R.P.No.1390 of 2013, which was dismissed with liberty to the petitioner to represent the appeal before the Lower Appellate Court. Accordingly, the petitioner represented the appeal with delay application stating that she went to Chennai to look after her daughter's child and she did not receive any communication from her counsel and hence, the delay occasioned was neither willful nor wanton. However, the Court below, without considering the facts and circumstances of the case and the reasons adduced by the petitioner in a proper perspective, has dismissed the condone delay petition, on technical grounds.
According to the learned counsel, such course adopted by the Court below is arbitrary and against the well settled principles of law. Hence, the learned counsel prayed to allow this Civil Revision Petition by setting aside the order impugned herein. In support of his submissions, the learned counsel placed reliance on the following decisions:
(i)In Ram Nath Sao @ Ram Nath Sahu & others v. Gobardhan Sao and others [CDJ 2002 SC 190], it was held by the Supreme Court at paragraph nos.12 to 14, as follows:
“12.Thus it becomes plain that the expression "sufficient cause" within the meaning of Section 5 of the Act http://www.judis.nic.in 4/19 C.R.P(MD)No.2273 of 2014 or Order 22 Rule 9 of the Code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party. In a particular case whether explanation furnished would constitute "sufficient cause" or not will be dependant upon facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal an exception more so when no negligence or inaction or want of bona fide can be imputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine like manner. However, by taking a pedantic and hyper technical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance http://www.judis.nic.in 5/19 C.R.P(MD)No.2273 of 2014 between resultant effect of the order it is going to pass upon the parties either way.
13.In view of the foregoing discussions, we are clearly of the opinion that on the facts of present case, Division Bench of the High Court was not justified in upholding order passed by the learned Single Judge whereby prayers for condonation of delay and setting aside abatement were refused and accordingly the delay in filing the petition for setting aside abatement is condoned, abatement is set aside and prayer for substitution is granted.
14.In the result, the appeal is allowed, impugned orders passed by the High Court are set aside and the matter is remitted back to the learned Single Judge for deciding the First Appeal on merits in accordance with law. In the circumstances of the case, we direct that the parties shall bear their own costs.”
(ii)In Challamane Huchha Gowda v. M.R.Tirumala and another, [2003 Supp (6) SCR 506], the observation of the Supreme Court would run thus:
“Execution is the enforcement, by the process of the Court of its orders and decrees. This is in furtherance of the inherent power of the Court to carry out its orders or decrees. Order 21 of CPC deals with the elaborate procedure pertaining to the execution of orders and decrees. Sale is one of the methods employed for execution. Rule 89 of Order 21 is the only means by which a Judgment Debtor can escape http://www.judis.nic.in 6/19 C.R.P(MD)No.2273 of 2014 from a sale that has been validly carried out. Object of the rule is to provide a last opportunity to put an end to the dispute at the instance of Judgment Debtor before the sale is confirmed by the Court and also to save his property from dispossessing. Rule 89 postulates two conditions: they are depositing-(l). of sum equal to five percent of the purchase money to be paid to the purchaser, (2). of the amount specified in the proclamation of sales less any amount received by the decree holder since the date of such proclamation, in the Court. If these two conditions are satisfied the Court shall make an order for setting aside the sale under Rule 92(2) or Order 21 of CPC on an application made to it. In other words then there will be compliance of Court's order or decree that is sought to be executed. Because the purpose of the Order 21 is to ensure that carrying out of the orders and decrees of the Court. Once the Judgment Debtor carried out the order or decree of the Court, the execution proceedings will correspondingly come to an end. It is to be noted that the Rule does not provide that the application in a particular form shall be filed to set aside the sale. Even a memo with prayer for setting aside sale is sufficient compliance with the said rule. Therefore, upon the satisfaction of the compliance of conditions as provided under Rule 89, it is mandatory upon Court to set aside the sale under Rule 92. And the Court shall set aside the sale after giving notice under Rule 92(2) to all affected persons.
http://www.judis.nic.in 7/19 C.R.P(MD)No.2273 of 2014 In the case on hand, it is not disputed that within the stipulated period of one month from the date of final bid in Court, the Petitioner - Judgment Debtor paid the decree amount to the Decree Holder and also filed a memo for setting aside the sale in the form of objections. Executing Court noted this aspect. By this payment the requirement under Rule 89(l)(b) of Order 21 was fulfilled. It is also noted that the Respondent No. l - Auction Purchaser refused to accept the solatium and he subsequently filed Application for confirmation of sale. Meanwhile the executing Court ordered for the deposit of solatium with the Court. This deposit complied with the second requirement under Rule 89(l)(a) of Order 21. Admittedly, on 25.09.1992 the Petitioner - Judgment Debtor filed his objections to the sale and also paid the entire decree amount together with the cost to the Respondent No. 2 - Decree Holder. The factum of the payment of entire decree amount to the Decree Holder with cost was not looked into by the First Appellate Court or by the High Court nor did it attach any value to the memo of objections for setting aside sale. It is also a settled position of law that a mere non-mentioning or wrong mentioning of a provision in an application is not a ground to reject an application, since, there is no bar in treating the objection (filed in the present case) as an application to setting aside the sale. Hence the setting aside of sale by the execution Court is perfectly in tune with the Code. In this view of the matter it is not necessary to look into other aspects agitated http://www.judis.nic.in 8/19 C.R.P(MD)No.2273 of 2014 by the contesting parties not to look into the authorities cited before us. Accordingly the order of the High Court affirming that of the First Appellate Court is set aside and order of the Executing Court is restored.
Appeal allowed accordingly.”
(iii)In Velayutha Gounder (Died) and others v.
Govindasamy [CDJ 2019 MHC 5344], this Court has held as follows:
“10.So the wording of the Hon'ble Apex Court is clear that before deciding these types of applications, two issues have to be taken into account for considering the same. One is liberal approach is necessary and other one is other circumstances have also to be taken into account. Our Hon'ble Apex Court ruled very specific that the litigation should not be terminated only by default. Therefore even though the reasons stated to condone the delay is not sufficient, since the suit is filed for declaration and other reliefs particularly for finding out the fact that who vested with the title, it is necessary to try the suit. Therefore, in view of the above, I am of the opinion that the Civil Revision Petition has to be allowed. However, since the suit is pending from the year 2005, it is appropriate to give some direction to the learned District Munsif, Sankarapuram to dispose of the same in a time framed manner.
11.The learned District Munsif, Sankarapuram is directed to post the suit in O.S.No.316 of 2005 on day to day http://www.judis.nic.in 9/19 C.R.P(MD)No.2273 of 2014 basis and complete the trial as early as possible preferably within a period of three months from the date of receipt of a copy of this Order.
12.This Civil Revision Petition is disposed of with above observations. Consequently, connected miscellaneous petition is closed. No costs.”
5.Per contra, the learned counsel for the contesting respondent submitted that the Court below has analysed the materials and pleadings placed before it and correctly passed the order impugned herein and therefore, the same does not call for any interference by this Court.
6.Heard both the sides and perused the materials available on record.
7.Admittedly, the petitioner is the third party to the suit proceedings, the first respondent is the decree holder and the second respondent is the judgment debtor. The petitioner, as a power of attorney agent of the second respondent, took all the efforts to set aside the sale conducted through Court auction in respect of the suit schedule properties, but the same ended in vain. She ultimately knocked the door of this Court with this Civil Revision Petition. http://www.judis.nic.in 10/19 C.R.P(MD)No.2273 of 2014
8.According to the petitioner, she is in possession of the suit schedule properties and that, she deposited the decree amount as well as the other incidental expenses to the tune of Rs.3,41,103/- on 25.03.2009 under Challan No.816 through State Bank of India, Karur, into the court and thereafter, filed an application to set aside the court auction sale within the time specified in the statute. The said stand was raised in the Memorandum of grounds of the Civil Miscellaneous Appeal. A copy of the lodgment schedule issued by the trial Court as regards the payment of decree amount, etc., was also produced to substantiate the said stand taken by the petitioner. Further, the order dated 23.08.2013 passed by this Court in CRP(NPD)(MD)No.1390 of 2013 enclosed at page 27 of the typed set of papers filed in the present Civil Revision Petition, would reveal that the petitioner, instead of approaching the District Court, preferred the said Civil Revision Petition as against the order passed by the lower Court dismissing the application filed by the petitioner seeking to set aside the court auction sale, due to which, there was delay occurred in filing the appeal. The decisions relied on by the learned counsel for the petitioner are squarely applicable to the facts of the present case.
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9.That apart, it is settled legal position that a liberal approach should be extended, while considering the application for condonation, In this context, the observation of the Supreme Court in some of the decisions, is profitably extracted hereunder:
9.1 In N.Balakrishnan v. M.Krishnamurthy, [(1998) 7 SCC 123], it was held as follows:
“9.It is axiomatic that condonation of delay is a matter of discretion of the court Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in reversional jurisdiction, unless the exercise of discretion was on whole untenable grounds or arbitrary or perverse. But it is a different matter when the first cut refuses to condone the delay. In such cases, the superior cut would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court.
10.The reason for such a different stance is thus: The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. Time limit fixed for approaching the court in different situations in not because on the expiry of such time a bad cause would transform into a good cause.
11.Rule of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. the object of http://www.judis.nic.in 12/19 C.R.P(MD)No.2273 of 2014 providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (it is for the general welfare that a period be putt to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
12.A court knows that refusal to condone delay would result foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain Vs. Kuntal Kumari [AIR 1969 SC 575] and State of West Bengal Vs. The Administrator, Howrah Municipality [AIR 1972 SC 749].
13.It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Could should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that http://www.judis.nic.in 13/19 C.R.P(MD)No.2273 of 2014 when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss.” 9.2 In G. Ramegowda, Major and others v. Special Land Acquisition Officer, Bangalore [1988 (2) SCC 142], the Supreme Court opined thus:-
“The contours of the area of discretion of the courts in the matter of condonation of delays in filing appeals are set out in a number of pronouncements of this Court. See : Ramlal, Motilal and Chhotelal v. Rewa Coalfield Ltd. [AIR 1962 SC 361]... etc. There is, it is true, no general principle saving the party from all mistakes of its counsel. If there is negligence, deliberate or gross inaction or lack of bona fide on the part of the party or its counsel there is no reason why the opposite side should be exposed to a time- barred appeal. Each case will have to be considered on the particularities of its own special facts. However, the expression ‘sufficient cause’ in Section 5 must receive a liberal construction so as to advance substantial justice and generally delays in preferring appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of the delay.” 9.3 In Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy & others, [2013 (5) CTC 547 (SC) :
2013 (5) LW 20], it was held by the Supreme Court that there should be a liberal, pragmatic, justice oriented, non-pedantic approach while dealing with an Application for condonation of delay. The principles http://www.judis.nic.in 14/19 C.R.P(MD)No.2273 of 2014 elucidated at paras 15 and 16 of the said judgment, are usefully extracted as follows:
"15. From the aforesaid authorities the principles that can broadly be culled out are:
(i) There should be a liberal, pragmatic, justice-
oriented, non-pedantic approach while dealing with an application for condonation of delay, for the Courts are not supposed to legalise injustice but are obliged to remove injustice.
(ii) The terms sufficient cause should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.
(iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
(iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the Counsel or litigant is to be taken note of.
(v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
(vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the Courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.
(vii) The concept of liberal approach has to en capsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.
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(viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.
(ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the Courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
(x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the Courts should be vigilant not to expose the other side unnecessarily to face such a litigation.
(xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.
(xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.
(xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.
16. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:
(a) An Application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the Courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.
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(b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.
(c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.
(d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a non-challan manner requires to be curbed, of course, within legal parameters."
10. In the light of the aforesaid legal principles and taking note of the facts that the suit schedule properties are said to be with the possession of the petitioner and she had deposited the decree amount into the court and the court auction sale is yet to be completed, this Court is of the opinion that to subserve the ends of justice, the delay in filing the appeal would be condoned and the appeal would be decided on merits. In such view of the matter, the order impugned herein is liable to be set aside and is accordingly, set aside. Consequently, the application filed to condone the delay in filing the appeal is ordered and the Civil Miscellaneous Appeal filed by the petitioner is directed to be numbered if it is otherwise in order.
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11. In the result, this Civil Revision Petition is allowed and the matter is remitted back to the District Court for consideration, without influencing any observation made in this Civil Revision Petition, on merits and in accordance with law, after affording due opportunity of hearing to all the parties. Since the Civil Miscellaneous Appeal is of the year 2013, the learned Principal District Judge, Karur is directed to dispose of the same as expeditiously as possible, preferably within a period of six months, from the date of receipt of a copy of this order.
However, there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.
10.12.2020 Index : Yes/No Internet : Yes/No pkn Note: In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.
To
1. The Principal District Court, Karur.
2.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.
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