Gnanadurai vs Suseelammal

This petition was filed to condone the delay of 684 days in filing the revision. The auction prochaser-Decree-holder is the petitioner herein. The

respondent is the Judgment-Debtor. The Judgment-debtor filed an application u/s 47 of CPC questioning the execution, discharge or satisfaction of

the decree obtained by the decree-holder. The above said application was allowed. Thereafter the auction purchaser, who is the petitioner herein

filed an appeal C.M.A. No. 14 of 1988 against the order passed in Application filed u/s 47 of the Civil Procedure Code. The said application was

ultimately dismissed by the appellate Court stating that only a revision will lie against the order passed in application filed u/s 47 of CPC and

directed the auction-purchaser to approach the proper Court for filing the revision. It is thereafter the present revision was filed.

The learned counsel for the petitioner submitted that since the appeal was prosecuted bona fide by the appellant, the time during which the

appeal was pending should be excluded and condoned. On the other hand, the learned counsel for the respondent submitted that there is no bona

fide on the part of the petitioner herein in approaching the appellate Court by filing an appeal against the order passed in application filed u/s 47 of

the CPC while a revision alone will lie before the High Court. The learned counsel further pointed out that in spite of the fact that the petitioner

herein had legal advice, if he approached a wrong forum, he will not be entitled to say that either under misapprehension or due to bona fide

prosecution the delay occurred should be condoned. It was therefore pleaded that the delay is deliberate and hence it should not be condoned.

I have heard the rival submissions. The fact remains that the petitioner, who is the auction purchaser-decreeholder contested the application filed

u/s 47 of the CPC by the Judgment-debtor, questioning the execution satisfaction or discharge of the decree passed against him. The application

filed u/s 47 of CPC was allowed. Thereafter the petitioner herein filed an appeal C.M.A. No. 14 of 1988 on the file of the Additional Sub Court,

Vellere under Order 43, Rule 1(j) of Civil Procedure Code. Even at the time of filing the appeal, the office raised an objection towards the

maintainability of this appeal stating as to how an appeal will He against the order passed in application filed u/s 47 of the Civil Procedure Code.

But it was contended that inasmuch as they attempted to question the sale under Order 21, Rule 92 of CPC the appeal will lie. Accordingly the

appeal was filed. The appeal was pending on the file of the first appellate Court and it was disposed of on 21-3-1990. In the order, the appellate

Court said that only a revision will lie against the order passed in an application filed u/s 47 of CPC and appeal will not lie, Accordingly the papers''

were returned on 29-3-1990 directing the petitioner herein to file the revision before the -proper court. Therefore, according to the petitioner

herein, since he was bona fide in prosecuting the appeal on a wrong impression that an appeal alone will lie against the order passed under

application filed u/s 47 of Civil Procedure Code, the delay of 684 days in filing the revision should be condoned.

The point for consideration is whether the petitioner herein was bona fide in prosecuting the appeal C.M.A. No. 14 of 1988 as contended by

him. When the appeal was filed before the Additional Sub Court, Vellore, the Office pointed out as to how the appeal will lie against the order

passed in an application filed u/s 47 of the Civil Procedure Code, To that the petitioner herein gave an anaswer that inasmuch as they are

questioning the irregularities in conducting the sale under Order 21, Rule 92 of Civil Procedure Code, the appeal will lie. Therefore, they are

definite in their mind that only an appeal will lie against the order passed in the application filed u/s 47 of Civil Procedure Code, and not a revision.

It is significant to note in T. K. Doraisami v. Premchand, 1985 2 Mad LJ 345. While considering similar circumstances, this Court held as under :

The defintion section of the CPC which is Section 2, as far as decree is concerned subsequent to the amendment by the CPC (Amendment) Act

1976 does not take in an order u/s 47 as coming under the definition of a ''decree''. If that be so, the order passed u/s 47 of the CPC is not

appealable and only a revision can be filed before the High Court.

This Court has clearly pointed out that in view of the defintion contained in Section 2 of Civil Procedure Code, order passed in the application filed

u/s 47 of CPC would not come under the definition of a ''Decree''. Therefore, no appeal will lie against the order passed in the application filed u/s

47 of Civil Procedure Code. The legal position in this matter was explicitly known to the petitioner that only a revision will lie against the order

passed in an application filed u/s 47 of Civil Procedure Code.

The Counsel for the petitioner submitted that the appeal was filed due to the legal advice given by his counsel. Therefore, the petitioner herein

cannot be held responsible for prosecuting the appeal in a wrong forum. Even if the appeal was filed with the advice of his cousel, once when the

office raised the objection with regard to the maintainability of the appeal, the petitioner and his counsel ought to have known that the appeal filed is

not maintainable, since only a revision alone will lie. Further in order to support this submission what on account of the legal advice given by his

counsel the appeal was filed, the supporting affidavit by the said counsel was filed in this proceedings. While considering similar situation in Ram

Bhawan Singh and Others Vs. Jagdish and Others, the Supreme Court held as under :

The first question that we have to decide is that of limitation. The delay of 1198 days according to the appellants had occurred unwillingly and the

appellants had been prosecuting with due diligence the earlier proceedings before the appellate and the revisional authorities and on the basis of the

advice by their Counsel. There is no proper affidavit of either the appellants or the counsel in support of the application for condonation of delay.

There is also no other material to indicate that the appellants had exercised due diligence in working out their remedies and sought proper advice in

the matter. When the party had no right of appeal, the proceedings instituted before the High Court challenging the Judgment in the writ petition

cannot be considered to be one in good faith. The subsequent proceedings are also not legal or valid. When the decision of the High Court in the

writ petition was one quashing the orders of the appellate and the revisional authorities, the party could not proceed on the basis that the matter

was restored to the lower authorities for fresh decision. We are therefore not satisfied that there is any merit in the ground urged by the appellants

for getting over the bar of limitation. The appeals are liable to be dismissed as time barred.

Therefore, the facts on record would go to show that there is no bona fide on the pan of the petitioner herein in prosecuting the appeal while a

revision is competent on an order passed in an application filed u/s 47 of Civil Procedure Code, Though some arguments were advanced on both

sides on merit, I am not inclined to go into the merits of the case. In view of the reasons therefore mentioned above, the petition is dismissed.

Petition dismissed.