Bombay High Court
Narayansingh S/O. Omkarsingh Baghel ... vs Smt. Aruna Wd/O. Shyamrao Patil And ... on 21 February, 2020
Author: Vinay Joshi
Bench: Vinay Joshi
Judgment sa502.15
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO. 502/2015.
1. Narayansingh s/o Omkarsingh
Baghel, Aged about 51 years,
Occupation - Agriculturist,
Resident of Shankarpur, Tq. Chimur,
District Chandrapur.
2. Roshan son of Narayansingh
Baghel, Aged about 26 years,
Occupation - Agriculturist,
Resident of Shankarpur, Tq. Chimur,
District Chandrapur. ... APPELLANTS.
VERSUS
1. Smt. Aruna wd/o Shyamrao Patil,
Aged about 42 years, Occupation
Service, resident of Nehru Ward,
Chimur, Tq. Chimur and District
Chandrapur.
2. Chetan s/o Vikasrao Kamdi,
Aged about 31 years, Occupation
Business, resident of Nehru
Ward, Chimur, Tq. Chimur,
District Chandrapur. ... RESPONDENTS.
::: Uploaded on - 27/02/2020 ::: Downloaded on - 11/06/2020 03:09:59 :::
Judgment sa502.15
2
---------------------------------
Mr. R.L. Khapre, Advocate for Appellants.
Shri R. Joshi, Advocate for Respondent No.1.
None for Respondent No.2 - Served.
----------------------------------
CORAM : VINAY JOSHI, J.
CLOSED FOR JUDGMENT : 17.12.2019.
JUDGMENT PRONOUNCED ON : 21.02.2020.
JUDGMENT :
The appellants (stranger purchasers), have challenged the order dated 09.10.2015, passed in Civil Misc. Application No.7/2015, by which the learned District Judge, has declined to condone the delay of 1869 days caused in filing First Appeal challenging the judgment and decree passed in Special Civil Suit No.63/2008 (Old Civil Suit No.181/2003) dated 08.12.2009.
2. While admitting this Appeal on 16.01.2017, the following substantial question of law has been framed :
" Whether the lower appellate Court committed an error in rejecting the application ::: Uploaded on - 27/02/2020 ::: Downloaded on - 11/06/2020 03:09:59 ::: Judgment sa502.15 3 for condonation of delay of 1869 days, caused in filing an appeal ?"
3. The facts giving rise to the present proceedings are that, respondent no.1 Smt. Aruna Patil [original plaintiff], had initially filed a Special Civil Suit No. 63/2008 (Old Civil Suit No.181/2003), against respondent no.2 Chetan Kamdi [original defendant], seeking a relief of specific performance. The defendant was owner and possessor of a land bearing Survey no.381, ad-measuring 6.62 HR of Mouza Chimur, Tq. Chimur, District Chandrapur (hereinafter referred to as "the suit property"). The defendant had executed an agreement to sale dated 13.11.2001, in favour of the plaintiff regarding the suit property. Initially the suit came to be decreed by the trial Court vide its judgment and decree dated 03.04.2005. Since it was an exparte decree, it was set aside and the matter was remanded for fresh trial. Thereafter, on merits the Special Civil Suit No.63/2008, was heard and again a decree of specific performance of contract came to be passed vide judgment and decree dated 08.12.2009. In consequence, the plaintiff had filed execution proceeding bearing Special Darkhast No.31/2010, for executing the decree of specific performance.
::: Uploaded on - 27/02/2020 ::: Downloaded on - 11/06/2020 03:09:59 :::
Judgment sa502.15 4
4. Appellants [stranger purchasers] have claimed that the suit for specific performance bearing Special Civil Suit No.63/2008, was a collusive suit between the plaintiff and defendant for depriving his property rights. They had purchased the suit property from the defendant for a valuable consideration vide registered Sale-deed dated 25.05.2004. They were bonafide purchasers for value. Moreover, they were put in physical possession of the suit property on the date of the sale deed itself.
5. On acquiring knowledge of the decree, appellants filed an obstruction proceeding on 29.04.2011 in Special Darkhast No.31/2010 under the provisions of Order XII Rule 97 of the Code of Civil Procedure. Evidence was led in the said execution proceeding. The Executing Court has held that appellants failed to establish their independent right in respect of the suit property and accordingly, the objection was rejected on merit vide order dated 30.08.2012. Being aggrieved by rejection of the said objection by the Executing Court, appellants have preferred Regular Civil Appeal No.69/2012. In the meantime, appellants had also filed a Regular Civil Suit No.55/2011, for setting aside the decree of specific performance dated ::: Uploaded on - 27/02/2020 ::: Downloaded on - 11/06/2020 03:09:59 ::: Judgment sa502.15 5 08.12.2009, passed in Special Civil Suit No.63/2008.
6. It is the case of appellants that during pendency of the Regular Civil Appeal No.69/2012 and Special Civil Suit No.55/2011, their Advocate has sought opinion from an Advocate of Nagpur about these pending proceedings. The Advocate from Nagpur had advised appellants vide letter dated 15.02.2015, that the obstruction proceeding filed by appellants in execution was not maintainable in terms of Order XXI Rule 102 of the Code of Civil Procedure. Moreover, Regular Civil Suit No.55/2011 is also not maintainable. In consequence, advised to withdraw both the proceedings and to file a Regular Civil Appeal to challenge the decree of specific performance passed in Special Civil Suit No.63/2008. Acting on the said advice, appellants [stranger purchasers], who were not party to the Civil Suit, have filed Regular Civil Appeal along with an application seeking leave to file appeal and delay condonation application (Misc. Civil Application No.7/2015) in the Court of District Judge, Wardha.
7. The learned District Judge after hearing both sides, vide order dated 09.10.2015, was pleased to reject the application for ::: Uploaded on - 27/02/2020 ::: Downloaded on - 11/06/2020 03:09:59 ::: Judgment sa502.15 6 condonation of delay, which is impugned in this Second Appeal.
8. In such background facts the controversy can be narrowed down to the extent of correctness of rejection of delay condonation application. Though appellants have claimed condonation of delay in terms of Section 5 of the Limitation Act, however, the bone of contention is about exclusion of time spent by them in prosecuting the remedy in good faith before the wrong forum. The learned District Judge was pleased to reject the application on merits for the reasons stated in the impugned order.
9. The learned Counsel appearing for appellants would submit that the learned District Judge failed in appreciating the matter in its proper perspective. The appellants were prosecuting Regular Civil Suit No.55/2011 and Regular Civil Appeal No. 69/2012, with due diligence before the wrong forum in good faith, where reliefs cannot be granted. According to him, appellants are entitled to invoke the provisions of Section 14 of the Limitation Act, to condone the delay. He would submit that no sooner appellants obtained expert advise through Advocate Kavimandan of Nagpur on 15.02.2015, they had withdrawn both the proceedings and filed an ::: Uploaded on - 27/02/2020 ::: Downloaded on - 11/06/2020 03:09:59 ::: Judgment sa502.15 7 appeal. He would submit that since appellants were bonafidely prosecuting their remedy before a wrong forum, they are entitled for exclusion of time in terms of Section 14 of the Limitation Act, and therefore, the delay was bound to be condoned.
10. In order to appreciate the controversy, it would be advantageous to make brief reference of the sequence of events with certain dates, as below -
1. 08.12.2009 Special Civil Suit No.63/2008, for Specific Performance was decreed.
2. Year 2010 Plaintiff filed execution proceedings bearing Special Darkhast No.31/2010.
3. 29.04.2011 According to appellants, they have acquired knowledge of pending execution.
4. 18.06.2011 Appellants filed obstruction proceedings in the execution proceedings. Special Darkhast No.31/2010.
5. 18.06.2011 Appellants filed Regular Civil Suit No.55/2011 for setting aside decree passed in Special Civil Suit No.63/2008.
6. 30.08.2012 Obstruction proceeding was rejected by the Executing Court.
7. 15.09.2012 Appellants filed Civil Appeal No.69/2012, challenging the orders of the Executing Court.
8. 15.02.2015 Appellants obtained legal advise through an Advocate of Nagpur.
::: Uploaded on - 27/02/2020 ::: Downloaded on - 11/06/2020 03:09:59 :::
Judgment sa502.15 8
9. 24.07.2015 Appellants have withdrawn Special Civil Suit No.55/2011.
10. 30.09.2015 Appellants have withdrawn Civil Appeal No.69/2012.
11. 13.03.2015 Appellants filed First Appeal challenging the decree of specific performance passed in Special Civil Suit No. 63/2008, along with leave to appeal and condonation of delay application bearing No.7/2015.
12. 09.10.2015 District Judge, rejected the application for condonation of delay.
11. The limited controversy is about condonation of delay of 1869 days caused in challenging the decree passed in Special Civil Suit No. 63/2008 dated 08.12.2009 in First Appeal. Appellants have canvassed the cause analogous to Section 14 of the Limitation Act, while seeking condonation of delay. There is no dispute that the principles underlying the provisions of Section 14 of the Limitation Act, would apply while considering the application for condonation of delay under Section 5 of the Limitation Act. The said proposition can be seen in the decision of Hon'ble Supreme Court in case of J.Kumaradasan Nair .vrs. Iric Sohan AIR 2009 SC 1333. In view of the said position, one has to see whether the appellants have complied with the essential ingredients of Section 14 ::: Uploaded on - 27/02/2020 ::: Downloaded on - 11/06/2020 03:09:59 ::: Judgment sa502.15 9 of the Limitation Act to seek benefit.
12. Once it is found that appellants are entitled to invoke the principles analogous to Section 14 of the Limitation Act, then the application has to be seen in the light of the provisions of Section 5 of the Limitation Act. In this regard useful reference can be made to the decision of Hon'ble Supreme Court in case of Consolidated Engineering Enterprises .vrs. Principal Secretary, Irrigation Department and others (2008) 7 SCC 169. In the said decision, the essentials to constitute applicability of Section 14 have been culled out in paragraph no.21 of the judgment, which read as follows.
"21. Section 14 of the Limitation Act deals with exclusion of time of proceeding bona fide in a court without jurisdiction. On analysis of the said section, it becomes evident that the following conditions must be satisfied before Section 14 can be pressed into service.
(1) Both the prior and subsequent
proceedings are civil proceedings
prosecuted by the same party;
::: Uploaded on - 27/02/2020 ::: Downloaded on - 11/06/2020 03:09:59 :::
Judgment sa502.15
10
(2) The prior proceeding had been
prosecuted with due diligence and in
good faith.
(3) The failure of the prior proceeding was
due to defect of jurisdiction or other
cases of this nature,
(4) The earlier proceeding and the later
proceeding must relate to the same
matter in issue and;
(5) Both the proceedings are in a court."
13. There is no dispute that the prior and subsequent proceedings were civil proceedings prosecuted by the same party. Likewise, earlier and later proceeding relates to the same matter in issue and both proceedings were in the Court. However, there is serious dispute on the above Clauses [2] and [3] pertaining to due diligence, good faith in prosecuting prior proceedings and failure of prior proceedings due to defect of jurisdiction or other cause of like nature. In order to seek benefit of Section 14 of the Limitation Act, appellants contended that the earlier two proceedings namely Regular Civil Appeal No. 69/2012 and Regular Civil Suit No.55/2011 ::: Uploaded on - 27/02/2020 ::: Downloaded on - 11/06/2020 03:09:59 ::: Judgment sa502.15 11 were prosecuted with due diligence before wrong forum.
14. As regards to the Regular Civil Appeal No. 69/2012 is concerned, the genesis is the obstruction proceeding initiated by appellants in Execution Petition No.31/2010, which was filed on 18.06.2011. Filing of Regular Civil Appeal no.69/2012, challenging rejection of obstruction proceeding is continuation of orders passed in execution, therefore, the decision of the execution petition carries importance. In the light of said position, appellants have to satisfy that the obstruction proceeding initiated in the Execution was a wrong remedy in the Court which does not have jurisdiction.
15. The learned counsel for appellants submited that in view of Rule 102 of Order XXI of the Code of Civil Procedure, the obstruction proceedings raised by the transferee in pendent light is not tenable. He would submit that by virtue of amended Rule 102, a transferee of judgment debtor cannot invoke Rules 98 and 100 of Order XXI of the Code of Civil Procedure, therefore, the obstruction proceedings initiated by appellants in Execution Petition No.31/2010, is not maintainable. This being the defect of jurisdiction, the time spent in prosecuting the obstruction proceeding ::: Uploaded on - 27/02/2020 ::: Downloaded on - 11/06/2020 03:09:59 ::: Judgment sa502.15 12 is sought to be excluded. To substantiate this contention, the appellants have relied on several decisions of this Court as well as of the Hon'ble Supreme Court.
16. Firstly appellants have relied on the decision of Hon'ble Supreme Court in case of Ghasi Ram and others .vrs. Chait Ram Saini and others AIR 1998 SC 2476 (1), which is distinguishable on facts. The said decision was based on the old Rule 103 of Order XXI, which provided a remedy of suit to a stranger purchaser. In said case, after obtaining legal advise, a revision was filed against the order of rejection of obstruction proceeding by a stranger purchaser, however, by virtue of the provisions of Order XXI Rule 103, separate suit was maintainable. In said context the time spent in prosecuting wrong remedy was excluded. In case at hand, the situation is quite distinct, as appellants have filed obstruction proceeding under Order XXI Rule 97 of the Code of Civil Procedure. The Civil Court was very much competent to decide the obstruction proceedings filed under Order XXI Rule 97 of the Code of Civil Procedure. Particularly, the Executing Court neither recorded a finding that it has no jurisdiction nor non-suited appellants on said count. There is marked ::: Uploaded on - 27/02/2020 ::: Downloaded on - 11/06/2020 03:09:59 ::: Judgment sa502.15 13 distinctions in two situations. In former there was remedy of separate suit by virtue of the then Rule 103, whilst Rule 102, no where suggest another remedy, but, only disable such transferee to claim relief which is matter of merit and not about jurisdiction of the Court. Pertinent to note that appellants fought tooth to nail before the Executing Court and after rejection on merit came with such stand.
17. Contextually, I may refer to the decision of the Hon'ble Supreme Court in case of Deena (dead) through L.Rs. .vrs. Bharat Singh (dead) through L.Rs. and others (2002) 6 SCC 336, wherein it is ruled that Section 14 has no application in a case where the suit is dismissed after adjudication on its merits and in case the Court was unable to entertain it. I may refer to the decision of this Court in case of Amjad Ali Shafi Khan .vrs. Abdul Hameed Abdul Gai Sheikh 2019 (2) Mh.L.J. 930, wherein it is ruled that after adjudication of prior proceedings on merits, it cannot be said that there was defect of jurisdiction or other causes of like nature. Appellants also relied on a reported case of Consolidated Engineering (supra), wherein the principles governing section 14, are explained and ultimately ruled ::: Uploaded on - 27/02/2020 ::: Downloaded on - 11/06/2020 03:09:59 ::: Judgment sa502.15 14 that the provisions of Section 5 of the Limitation Act, are not applicable to Arbitration Proceedings, but, the provisions of Section 14 of the Act would apply. Reliance is placed on the decision of Andhra Pradesh High Court in case of Profit Shoe Company Pvt. Ltd. .vrs. M. Krishna Reddy and others AIR 2010 AP 163, wherein Rule 102 to Order XXI has been explained.
On the same line, appellants have relied on the decision of this Court in case of Suffian Ahmed Millan Hussen Shah .vrs. Sulochana Vasant Bhavsar and others AIR 2013 Bom. 104, wherein it is ruled that the stranger purchaser cannot invoke the provisions of Rule 97 of Order XXI. Infact it is reiterated that the purchaser from the judgment debtor during pendency of the suit, cannot avail Rule 97 to 102 of Order XXI. Likewise, appellants have relied on some other decision, which relates to merits of appellant's right in respect of the suit property. Since the controversy is restricted to the condonation of delay, there is no necessity to go through the merits pertaining to the right of suit property.
18. Appellants finally relied on the decision of J. Kumaradasan Nair (supra), wherein the Hon'ble Supreme Court has ::: Uploaded on - 27/02/2020 ::: Downloaded on - 11/06/2020 03:09:59 ::: Judgment sa502.15 15 ruled that the Court shall not apply beneficent provisions like Section 5 or Section 14 in a pedantic manner. There is no dispute about said proposition of law, but, on the basis of given facts the provisions are to be interpreted. Generally provisions are to be liberally interpreted to do complete justice on merits, but, for mere asking sans bonafides the provisions of the Limitation Act, cannot be thwarted.
19. As against this, respondent has relied on the case of Basawaraj and another .vrs. Special Land Acquisition Officer (2013) 14 SCC 81, wherein the Hon'ble Supreme Court in categorical terms held that the discretion to condone the delay has to be exercised judiciously, based on facts of each case. The term "sufficient cause"
cannot be liberally interpreted if there is negligence, inaction or lack of bonafides attributed to the party. Therefore on the basis of given facts of the case, the cause advanced has to be tested judiciously.
20. We may recapitulate that appellants have resisted the execution petition by filing obstruction proceeding in terms of Order XXI Rule 97 of the Code of Civil Procedure. The provisions of Section 102 would impair appellants to get the relief, but, the Civil Court was quite competent to decide the obstruction proceeding, inasmuch ::: Uploaded on - 27/02/2020 ::: Downloaded on - 11/06/2020 03:09:59 ::: Judgment sa502.15 16 as, the executing Court has not rejected the obstruction proceeding on the premise of want of jurisdiction. Rather appellants prosecuted obstruction proceeding on merits and on failure took a diverse stand. Notably, appellants invited a decision on merit of Executing Court, hence, also there is no justification for appellants to invoke Section 14 of the Limitation Act. The main factor which would influence the Court in extending the benefit of Section 14 of the Limitation Act is whether the propr proceeding had been prosecuted with due deligence and in good faith. The term 'good faith' as used in Section 14 means "exericse of due care and attention". In said context, the expression 'good faith' clarifies prosecuting the proceeding in the Court which ultimately is found to have no jurisdiction. One can understand that if appellants at their own had withdrawn the proceeding from the Executing Court instead of inviting decision on merits. Therefore, it cannot be said that appellants were bonafidely prosecuting prior proceeding before the wrong forum, so as to invoke the provisions of Section 14 of the Limitation Act. The term 'other causes of like nature' employed in Section 14 of the Limitation Act has to be read ejusdem generis. Therefore the meaning of the said term must be interpreted having ::: Uploaded on - 27/02/2020 ::: Downloaded on - 11/06/2020 03:09:59 ::: Judgment sa502.15 17 regard to words surrounded to it. Besides jurisdictional defect of prior proceeding any other interpretation foreign to the basic concept cannot be put into.
21. The second limb is about pendency of Regular Civil Suit No. 55/2011 filed by appellants for setting aside the decree passed in a suit for specific performance (No.63/2008). Herein the suit was not decided on merits, but, appellants have withdrawn the same on 24.07.2015. It is the stand of appellants that the action of filing separate Civil Suit for setting aside the decree was inappropriate, and hence, it was withdrawn. Respondent has resisted this stand by contending that the separate suit filed by appellants was maintainable and therefore, it cannot be said that there was defect of jurisdiction. In this regard respondent has relied on the decision in case of Lalitabai Ishwarprasad Chopra .vrs. Pundlik Dayaram Rangari through L.Rs. 2007 (1) Mh.L.J. 782. In said case, this Court ruled that separate suit for declaration that the decree was obtained by fraud, is maintainable. On the same line, respondent has relied on the decision of this Court in case of Saburdas Mahasukhram Gandhi .vrs. Gopalji Nandas Patel and others AIR 1943 Bom.283, ::: Uploaded on - 27/02/2020 ::: Downloaded on - 11/06/2020 03:09:59 ::: Judgment sa502.15 18 wherein it is equally ruled that such a suit is maintainable.
22. Appellants have instituted Regular Civil Suit No.55/2011 on 18.06.2011, with a prayer that a decree passed in Civil Suit No.68/2008 is hit by principles of Section 19 of the Specific Relief Act and it is unexecutable. It is the case of appellants that they were bonafide purchasers for value without notice. The decree passed by the Civil Court is nullity, since it has been obtained by playing fraud upon the Court by not disclosing the real transaction (paragraph no.7 of the plaint). Appellants have not demonstrated any legal provision to show that the said suit was not maintainable. In this regard, appellants have merely relied on the legal advise given by Advocate R.G. Kavimandan, vide letter dated 15.02.2015. It was advised that appellants are successor in interest of the original defendant, hence a separate suit is not maintainable. Advocate's advise cannot be termed as a letter of law. When appellants came with a specific pleading that the decree was obtained in collusion, the suit is well maintainable. Therefore, it cannot be said that the action of appellants in filing Regular Civil Suit No. 55/2011 was before wrong forum, so as to claim exception while seeking exclusion of time in ::: Uploaded on - 27/02/2020 ::: Downloaded on - 11/06/2020 03:09:59 ::: Judgment sa502.15 19 terms of Section 14 of the Limitation Act.
23. Reverting back to Special Civil Suit which came to be decreed on 08.12.2009, appellants have not explained as to how they have acquired knowledge of said decree, particularly on 29.04.2011. Even if it is accepted that they have acquired knowledge on 29.04.2011, still the Second Appeal along with delay condonation application came to be filed on 13.03.2015. The long gap is tried to be bridged on the basis of Advocates opinion, which does not stands to reason. When appellants filed obstruction proceeding in execution, at that time Rule 102 of Order XXI of the Code of Civil Procedure was very much in existence,and obviously within the knowledge of appellants. Appellants tried to invoke Rule 102 as a new invention on the basis of legal advise which itself lacks bonafide. Appellants have not made out a case to show that they were bonafidely litigating the matter before a forum which does not have jurisdiction, and as such, they are not entitled to invoke the provisions of Section 14 of the Limitation Act, and consequently inordinate delay is not liable to be condoned.
24. The findings recorded by the learned District Judge are ::: Uploaded on - 27/02/2020 ::: Downloaded on - 11/06/2020 03:09:59 ::: Judgment sa502.15 20 based on sound and proper reasoning, which requires no interference. The learned District Judge has not committed any error in refusing to condone long delay of 1869 days in filing the appeal. In consequence, the Second Appeal fails and is dismissed accordingly with costs.
JUDGE
25. At this stage, Shri Kavimandan, learned Counsel h/f Shri R.L. Khapre, learned Senior Counsel for appellants requested to extend the stay to the execution, granted on 30.11.2015, on the premise that appellants are in possession of the suit property, and they desire to challenge the judgment before the higher forum.
26. In view of the request made, the interim order granted by this Court on 30.11.2015, shall remain in operation for a period of four weeks from today, and shall cease to operate automatically thereafter.
JUDGE Rgd.
::: Uploaded on - 27/02/2020 ::: Downloaded on - 11/06/2020 03:09:59 :::