Tantia Dharamshala Trust vs Hakam Mal

Rajender Nath Mittal, J.—This application has been filed u/s 14 read with Section 5 of the Limitation Act, for condoning the delay in filing the revision petition. The case of the decree holder Applicant is that the Executing Courts accepted the objections of the judgment-debtor on 20th November, 1978. He, under a bona fide mistake believed that the order was appealable, filed an appeal against the order before the Additional District Judge, Ferozepur, on 20th February, 1979 It came up for hearing before the Additional District Judge, Ferozepur, on the 17th September, 1980 and he held that the order was not appealable. Consequently, he dismissed the appeal. The Applicant filed a revision petition against the order of the Executing Court to this Court on 8th December, 1980, after obtaining copies of the orders of the Executing Court and the Additional District Judge. It is averred by the Petitioner that if the days during which the appeal remained pending before the Additional District Judge are taken into consideration, then the revision petition is within limitation. In the aforesaid situation, he has prayed that the delay in filing the revision petition be condoned.

The application has been contested by the Respondent, who has inter alia pleaded that it was the duty of the Applicant to explain each day''s delay after the 17th September, 1980, which he has failed to do. It is further averred that thus he is not entitled to the benefit of Section 5 of the Limitation Act.

It is contended by Mr. Sarin that the Applicant filed the appeal in the Court of the Additional District Judge bona fide considering that the order was appealable and the office accepted the same. However, it was found on 17th September, 1980, that no appeal was maintainable against the order. He urges that in the said situation, the period from the date of filing of the appeal till its decision by the Additional District Judge should be excluded for the purpose of filing the revision petition in this Court and if that period is excluded, the revision petition is within time. He places reliance on Balbir Singh v. Sogh Singh 1974 PLR. 321.

I have considered the argument but regret my inability to accept it. It is admitted that the Additional Distict Judge held on 17th September, 1980 that the appeal was not maintainable in his Court. It is also admitted that the order of the executing Court is revisable and the period of limitation for filing a revision petition is ninty days under Article 131 of the Limitation Act. In computing the period of limitation, time requisite for obtaining a copy of the judgment to be revised is to be excluded u/s 12 of the Act. It is an admitted case of the Applicant that after obtaining a copy of the judgment of the executing Court, he had filed an appeal before the Additional District Judge. The limitation for filing a revision petition had expired before 17th September, 1980. The Applicant, after dismissal of the appeal, applied for copies of the judgments of the executing Court and the appellate Court on 3rd and 4th November, 980, respectively and they were ready for delivery on 14th and 13th November, 1980, respectively. The revision petition has been filed on 8th December, 1980.

The Applicant has filed the application u/s 5 and 14 of the Limitation Act for condonation of delay in filing the appeal. It is well-settled that Section 14 ibid is not applicable in the case of appeals in that view, I am fortified by the observations of a Division Bench of this Court in Buta Singh v. Chand alias Chanda Singh 1970 PLR 803. The same principle is applicable to revisions also. Thus, the Applicant is not entitled to the benefit of Section 14. He however, is entitled to the benefit of Section 5 as it is evident from his affidavit that he filed the appeal before the Additional District Judge under bona fide belief that he was entitled to do so and no objection was taken by the office even. It is a settled propose in of law that u/s 5, each days delay, after the expiry of the period of limitation, has to be explained satisfactorily and the explanation has to cover the whole period of delay see Om Sarup Nand Lal Vs. Gur Narain and Others, .

In the present case, the Applicant has to explain the delay from 17th September, 1980, to 8th December, 1980, as the limitation for filing the appeal had expired on 17th September 1980. He, u/s 5, can be given bereft only of the days actually taken in obtaining copies of the judgments. He applied for a copy of the judgment of the executing Court on 3rd November, 1980 and the same was ready for delivery on 14th November, 1980. During that period, copy of the judgment of the Additional District Judge was also applied and it became ready for delivery, as already mentioned above. Therefore, u/s 5, he will be entitled to the said period after the dismissal of the appeal, for the purposes of filing the revision petition. He failed to explain as to why he did not file an application for copies of the judgments from 17th September, 1980, to 3rd November, 1980 and as to why he did not file the revision petition from 14th November, 1980 to 8th December. 1980. In case he wanted to take the benefit of Section 5, he should have given a satisfactory explanation for these days. I am, therefore, of the view that he has not been able to make out a case for condoning the delay u/s 5 of the Limitation Act.

The counsel for the Applicant has made a reference to Balbir Singh''s case (supra). In that case, the appeal was maintainable in the High Court but it was filed before the Additional District Judge. No objection was raised by the other party in the lower appellate Court regarding jurisdiction of that Court. Therefore, the appeal was heard on merits and dismissed by the appellate Court. The Appellant came up in second appeal to this Court where, on an objection by the Registry that the first appeal was maintainable against the judgment and decree of the trial Court to this Court and not to the first appellate Court, the Appellant converted that in the regular first appeal and made an application for condoning the delay u/s 5 of the Limitation Act. This Court refused to condone the delay. The Appellant went up to the Supreme Court which reversed the judgment of this Court observing that in the situation, delay in filing the appeal should have been condoned u/s 5 of the Limitation Act. The above case is clearly distinguishable. In that case, the Appellant came to know for the first time in the High Court that the appeal against the judgment and decree of the trial Court was not maintainable before the first appellate Court. In my view, the observations in that case are of no assistance to the learned Counsel for the Applicant.

For the aforesaid reasons I do not find any merit in the miscellaneous application and dismiss the same. The revision petition, being barred by limitation, is also dismissed. No order as to costs.