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Background facts

2. The respondents, being Decree Holders (for short „DHs‟) in Suit No. 1080/79, had sought execution of the same. The petitioners resisted the same and filed their objections which were dismissed by the learned Civil Judge on 30.03.2006. In their application under Section 14 of the Act, the petitioners submitted that they were the owners, in possession of property bearing No. 6D, Jungpura, New Delhi by virtue of a sale deed in their favour; that on the basis of legal advice, they preferred an appeal before the High Court on 17.04.2006, which was registered as EFA No. 13/2006; that on 24.04.2008, while the appeal was pending and the order impugned therein, i.e., execution proceedings had been stayed, the DHs had contended that the appeal was not maintainable before the High Court and it ought to have been filed before the learned District Judge. That by an order dated 24.04.2008, the High Court had directed return of the appeal to the petitioners and observed that the pending applications were to be decided by the Court of competent jurisdiction; since the interim orders in the returned appeal were passed by the Court without jurisdiction, the petitioners had moved an application seeking recall of paragraph 5 of the order dated 24.04.2008 and it was disposed off on 20.05.2008 with the clarification that when "the instant appeal which is directed to be returned to the appellants is re-filed all questions relating to the existence and effect of interim orders would be open to be urged by either party and if urged the learned Court before whom the appeal is filed would decide the same in accordance with law"

9. The learned counsel for the petitioners submits that the petitioners are illiterate and upon their counsel‟s advice, preferred an appeal before the High Court which was registered as EFA No. 13/2006 and interim stay was granted on 18.04.2006; that a compromise was arrived at between the parties and the said appeal was disposed off; that the compromise was not acceptable to the other petitioners, therefore, they moved applications for recall of the compromise order which remained pending in the record of the said appeal. He further submits that in the interim, one of the LRs of the petitioners filed a separate appeal bearing EFA No. 5/2007; that on 28.05.2007, the respondents took an objection to the maintainability of the said appeal and contended that it would lie before the District Court; and on 24.04.2008, this Court directed return of both the appeals. He further submits that the Appellate Court erred in not considering the fact that the petitioners could not have withdrawn the appeal on 28.05.2007, when an objection to its maintainability was raised since:

a. EFA No. 13/2006 was lying disposed off vide order dated 19.02.2007 and the disposed off appeal could not have been withdrawn and filed unless restored, which happened on 24.04.2008 and 20.05.2008 and the appeal was immediately filed on the next day of return. b. Admittedly, no objection with respect to the maintainability was raised in EFA 13/2006 till 24.04.2008.

16. At this stage, reference to the factual matrix of the present case would be appropriate. The order dated 23.09.2003 of the High Court reveals that the J.Kumaradasan Nair & Anr. v. IRIC Sohan & Ors., AIR 2009 SC 1333 Consolidated Engineering (supra) Consolidated Engineering (supra) execution petition pending before it had been transferred to the District Court in view of Section 2 of the Delhi High Court (Amendment) Act, 2003. Thereafter, the execution proceedings had been transferred to the learned Civil Judge vide order dated 10.02.2004 since the District Court lacked the jurisdiction to entertain the same. It is noteworthy that a copy of the plaint had been filed by the objector(s)/petitioners themselves to show the valuation of the suit. The learned counsel for the objectors/petitioners was also present when the order dated 10.02.2004 was passed. This would imply that the petitioners were always aware of the law, i.e., Delhi High Court (Amendment) Act, 2003 and were beneficiaries of sound legal assistance. Therefore, it cannot be said that the appeal against the order dated 30.06.2006 was filed before the High Court upon incorrect legal advice or due to inadvertence. The High Court also granted an interim stay on 18.04.2006 in favour of the petitioners. An objection to the maintainability of the connected appeal bearing EFA No. 5/2007 was raised on 28.05.2007 wherein the learned counsel for the petitioners had sought time to study the matter. The learned counsel had admitted that if EFA No. 5/2007 was not maintainable, then the connected appeal bearing EFA No. 13/2006 would also not be maintainable. This Court would notice that on 28.05.2007, when the connected appeals bearing EFA Nos. 13/2006 and 5/2007 were taken up, counsel for the petitioners (appellants therein) in both the cases were present. Therefore, it cannot be said that the petitioners were not aware of the fact that their appeal was not maintainable. Accordingly, the submission of the learned counsel for the petitioners that no objection apropos the maintainability of EFA No. 13/2006 was taken is without substance is untenable.