Narayansingh And Anr vs Aruna And Anr

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.

9.,24.07.2015,Appellants have withdrawn Special Civil Suit No.55/2011.

10.,30.09.2015,Appellants have withdrawn Civil Appeal No.69/2012.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.

asking sans bonafides the provisions of the Limitation Act, cannot be thwarted.",,

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.",,

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 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 attentionâ€. 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 regard to words surrounded to it. Besides jurisdictional defect of prior proceeding,,

any other interpretation foreign to the basic concept cannot be put into.,,

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, wherein it is equally ruled that such a suit is maintainable.",,

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 terms of Section 14 of the Limitation Act.,,

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.,,

The findings recorded by the learned District Judge are 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,,

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.,,

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.",,