Dismissed

Mohan and 2 Others v. B.N. Public School and 2 Ors.

Allahabad HC18 Jan 2019SCCRD/98/2016

Case brief

AI extract

What is this about?

This single judge order dismisses a revision petition against an exparte judgment and decree due to fatal delay. The court rejected the condonation of delay application, noting the parties attempted to evade depositing the decretal amount required by the Provincial Small Cause Courts Act.

What did the court decide?

Delay condonation application and revision petition were rejected/dismissed.

Mohan and 2 Others Vs B.N. Public School and 2 Ors. — Execution and Attachment | Allahabad HC (2019)

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Court No. - 19

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Case :- S.C.C. REVISION DEFECTIVE No. - 98 of 2016

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Revisionist :- Mohan And 2 Others Opposite Party :- B.N. Public School And 2 Ors. Counsel for Revisionist :- Awadhesh Kumar Counsel for Opposite Party :- Praveen Kumar Giri,Krishna Mohan Tripathi

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Hon'ble Manoj Kumar Gupta,J.

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Counsel for the revisionists states that he is giving up the challenge to order dated 4.4.2016 rejecting the recall application. He further states that he is confining the instant revision in so far as it seeks to challenge the exparte judgement and decree dated 27.10.2015 in SCC Suit No.7 of 2014.

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Order on C.M. Delay Condonation Application NO.138010 of 2016

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Heard counsel for the parties.

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The revision in view of statement made above stands confined to order dated 27.10.2015, whereby SCC Suit No.7 of 2014 was decreed by the trial court for recovery of arrears of rent and for eviction of the defendants.

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Indisputably, initially the revisionists filed an application under Section 151 CPC for recall of judgement and decree dated 27.10.2015 alleging that it is exparte against them. The application was rejected by the court below by order dated 4.4.2016 on the ground that the revisionists have not complied with Section 17 of the Provincial Small Cause Courts Act, 1887 (for short 'the Act'). The application filed under Section 151 CPC was also held to be not maintainable in view of there being a specific remedy available by way of Section 17 of the Act. It is an admitted fact that the revisionists thereafter filed a petition under Article 227 of the Constitution challenging the judgement dated 27.10.2015 and order dated 4.4.2016, but which was rejected by this Court on the ground of availability of alternative remedy.

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The revision is reported to be beyond time by 152 days.

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From the facts narrated above, it is clear that the revisionists sought recall of judgement by filing a recall application without depositing the decreetal amount as required by Section 17 of the Act. When the said application was rejected on the ground of non-compliance of Section 17, they approached this Court by way of a petition under Article 227 of the Constitution in which

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also they could not get any success. Thereafter, the instant revision has been filed challenging the order dated 4.4.2016 rejecting the recall application and also the judgement dated 27.10.2015. To escape from the liability to deposit the decreetal amount as required under Section 17, they have chosen to give up challenge to the order dated 4.4.2016, though revision against the said order is within limitation.

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The affidavit filed in support of the delay condonation application does not offer any explanation whatsoever for not seeking remedy by way of revision before this Court against the judgement passed in the suit within limitation prescribed by law. It is more than clear that the revisionists in order to avoid depositing of decreetal amount in compliance of Section 17 of the Act have chosen to challenge the exparte judgement and decree much after the limitation has expired, without offering any explanation for the delay.

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Consequently, the delay condonation application is rejected. As a result, the revision also stands dismissed.

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(Manoj Kumar Gupta, J)

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Order Date :- 18.1.2019 SL

Mohan and 2 Others v. B.N. Public School and 2 Ors.

Case brief

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Mohan and 2 Others v. B.N. Public School and 2 Ors.

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