Allowed¶78

Mayadhar Behera v. Golakh Ch.Pati

Orissa HC4 Sept 2025RSA/466/2013

Case brief

AI extract

What is this about?

Orissa High Court, Cuttack; RSA No.466 of 2013; Sashikanta Mishra J.; judgment dated 04.09.2025; Order XXI Rule 99 C.P.C.; Order XXI Rule 97 C.P.C.; Order XXI Rules 100 and 101; Article 128 Limitation Act; Section 14(2) Limitation Act; Section 5 Limitation Act; limitation for dispossession application; 30 days from dispossession; no condonation of delay under Order XXI; execution Case No.12/2008; C.S. No.28/2005; C.M.A. No.5/2009; C.M.A. No.37/2008; deed of cancellation No.295 dated 19.2.2008; registered sale deed No.570 dated 2.3.2005; Mouza Goudunibeda; Keonjhar; Mayadhar Behera; Golakh Chandra Pati; substantial questions of law; second appeal allowed; impugned judgment and decree set aside.

What did the court decide?

Appeal allowed; the impugned judgment and decree of the First Appellate Court set aside; no order as to costs. ¶78

Mayadhar Behera Vs Golakh Ch.Pati — Orissa HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Appeal allowed; the impugned judgment and decree of the First Appellate Court set aside; no order as to costs.

¶78

Issue for consideration

Whether for the purpose of filing an application under Order XXI Rule 99 C.P.C., the period of limitation as prescribed under Article 128 of the Limitation Act would apply (substantial question of law 1). +2 more

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Court's answer

The period of limitation for filing an application under Order XXI Rule 99 C.P.C. is 30 days from the date of dispossession, being governed by Article 128 of the Limitation Act.

¶76

Ratio / Principle

The benefit of exclusion of time under Section 14(2) of the Limitation Act is not available where the application under Order XXI Rule 99 C.P.C. was filed while the earlier application under Order XXI Rule 97 C.P.C. was still pending; Section 14(2) comes into play when the first application is disposed of, not when it is pending, and allowing the benefit would tantamount to simultaneous invocation of two distinct provisions.

¶71

Key takeaways

The application under Order XXI Rule 99 C.P.C. was barred by limitation; this Court cannot concur with the finding of the First Appellate Court that the application was within time.ratio¶76
In view of the express bar contained in Section 5 of the Limitation Act on its application to any of the provisions of Order XXI, the period of limitation has to be construed strictly, with no scope whatsoever for condonation of delay.ratio¶76

Detailed headnote1 paragraphs

RSA No.466 of 2013 (High Court of Orissa at Cuttack, Sashikanta Mishra J., judgment dated 04.09.2025): Second appeal by Mayadhar Behera (since dead; Dilip Kumar Behera and others on record) against the common judgment dated 23.9.2013 of the learned Addl. District Judge, Keonjhar in R.F.A. No.33/17 of 2013-2012, which had confirmed dismissal of nothing in favour of the appellant and had upheld the respondent Golakh Ch. Pati's application under Order XXI Rule 99 C.P.C. (C.M.A. No.5/2009). Held: (i) the period of limitation for an application under Order XXI Rule 99 C.P.C. is prescribed by Article 128 of the Limitation Act, i.e. 30 days from the date of dispossession; (ii) the benefit of exclusion of time under Section 14(2) of the Limitation Act was unavailable because the Rule 99 application (filed 8.1.2009) was lodged while the earlier application under Order XXI Rule 97 C.P.C. was still pending - Section 14(2) comes into play only when the first application is disposed of, not while it is pending; (iii) Section 5 of the Limitation Act expressly bars its application to the provisions of Order XXI, so the limitation period admits of no condonation. Consequently the Rule 99 application (dispossession on 19.8.2008) was time-barred. Appeal allowed; impugned judgment and decree set aside; no costs.

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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RSA No.466 of 2013

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(From the judgment and decree dated 23.9.2013 and 7.10.2013 passed by learned Addl. District Judge, Keonjhar in R.F.A. No.33/17 of 2013-2012 in dismissing the appeal in the process confirming the order dated 21.3.2012 passed by learned Civil Judge (Sr. Division), Keonjhar in C.M.A. No.5/2009)

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Mayadhar Behera (since dead) Dilip Kumar Behera and others

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versus-

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Golakh Chandra Pati

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… Respondent

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Advocates appeared in the case through hybrid mode:

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For Appellants : Mr. Soumya Mishra, Advocate

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versus- For Respondent : Mr. L. Sarangi, Advocate.

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------------------------------------------------------------------------

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CORAM: JUSTICE SASHIKANTA MISHRA

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JUDGMENT 04.09.2025

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Sashikanta Mishra,J .

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This appeal is directed against the common judgment passed by learned Addl. District Judge, Keonjhar on 23.9.2013 followed by decree in R.F.A. No.32/2015 of 2013-12 and R.F.A. No.33/2017 of 201312 whereby the first mentioned appeal was allowed and the second mentioned appeal was dismissed. Further, the right, title and interest of the appellant in R.F.A. No.32/2015 of 2013-12 was declared over the suit land and he was directed to be put in possession thereof in Execution Case No.12/2008. Both the appeals as above emanated from order dated 21.3.2012 passed by the learned Civil Judge (Sr. Division), Keonjhar in C.M.A.No.5/2009 filed by the present appellant.

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2. For convenience, the parties are referred to by their respective names to avoid confusion.

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3. The facts of the case are that Golakh Ch. Pati purchased land measuring Ac.0.10 decs out of Ac.2.24 decs of land in Plot No.12 under Khata No.33 of Mouza Goudunibeda vide R.S.D.No.570 dtd.2.3.2005 from

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R.S.A. No. 466 of 2013 Page 2 of 16

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Mayadhar Behera for a consideration of Rs.35,000/-. Said Mayadhar Behera had purchased the case land along with other lands from one Haguru Machhua vide Registered Sale Deed No.544 dated 22.2.1977. Golakh Ch. Pati and Mayadhar Behera being co-devotees of Prajapita Brahmakumari Iswaria Viswa Vidyalaya were well-known to each other. As such, Golakh Ch. Pati on good faith asked Mayadhar Behera to keep the original sale deed with him and to watch over the case land. Golakh Ch. Pati was a teacher and retired from service on 31.5.2006. After his retirement he asked for the original sale deed from Mayadhar Behera for mutation but was told that the same had been lost and accordingly he was advised to obtain a certified copy. The Petitioner,

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after obtaining a certified copy on 31.10.2007 filed Mutation Case No.186/2008 before the Tahasildar, Keonjhar. In the mean time, Golakh Ch. Pati came to know that Mayadhar Behera had filed a Civil Suit on 31.3.2005 against his vendor (Haguru Machhua) for declaration of his right, title, interest and confirmation of possession including the lands sold to Golakh Ch. Pati.

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R.S.A. No. 466 of 2013 Page 3 of 16

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Golakh was not impleaded as a party to the suit. When Golakh asked him about it, Mayadhar Behera executed a deed of cancellation bearing No.295 dtd.19.2.2008 cancelling the RSD dated 02.3.2005. Further, Mayadhar Behera filed Execution Case No.12/2008 arising out of the decree in C.S. No.28/2005 for delivery of possession of the suit land through the Bailiff of the Court after demarcation by the Civil Court Commissioner. At this stage Golakh Ch. Pati filed C.M.A. No.37/2008 on 25.6.2008 under Order XXI Rule 97 C.P.C. However, Mayadhar Behera proceeded with the execution and took delivery of possession of the suit land on 19.8.2008. Such fact came to the knowledge of Golakh Ch. Pati on 1.10.2008 when Mayadhar Behera filed objection in the CMA filed by him. Golakh Ch. Pati therefore, filed C.M.A. No.5/2009 under Order XXI Rule 99 C.P.C. without pressing the previous C.M.A. Mayadhar Behera appeared by filing show cause questioning the maintainability of

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the application on the ground of absence of cause of action and being barred by limitation. It was stated that since Golakh Ch. Pati was never in possession and

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R.S.A. No. 466 of 2013 Page 4 of 16

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therefore, can never be said to be dispossessed. So, the petition under Order XXI Rule 99 is not maintainable. He further took the plea that the registered sale deed dtd.2.3.2005 was without consideration for which no title passed to Golakh Ch. Pati on such basis and no possession was delivered. Therefore, the deed of cancellation dtd.19.2.2008 is valid and proper. It was further stated that the description of the suit land is indefinite and vague. Since Golakh Ch. Pati did not pay the consideration amount, Mayadhar Behera kept the e- ticket with him and did not endorse or handover the same to Golakh Ch. Pati. Since the sale deed was never given effect to, no right, title or interest passed to him. Mutation Case filed by Golakh Ch. Pati was also dropped as he was found to be not in possession.

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4. Basing on the pleadings, the trial court framed the following issues for determination;

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(1) Whether the O.P. validly executed the registered sale deed bearing No.570 dt.2.3.2005 in favour of the petitioner and thereby transferred Ac.0.10 dec. of land as per the schedule in the petition?

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(2) Whether the cancellation deed vide registration No.295 dt.19.2.2008 and the order in mutation case bearing No.186 of

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R.S.A. No. 466 of 2013

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Page 5 of 16

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2008 affected the right, title and interest of the petitioner over the case land in any manner?

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(3) Is the proceeding maintainable under law?

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(4) To what relief, if any, the petitioner is entitled?

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5. The trial court took note of the admitted facts of the

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case and found that Mayadhar Behera having admitted to have executed the registered sale deed in favour of Golakh and the contents of the deed being not ambiguous regarding passing of consideration and delivery of possession, Mayadhar Behera cannot take the stand that he has not delivered possession to Golakh Ch. Pati. Even otherwise, his possession cannot be treated as

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being with hostile animus and it would be presumed that Golakh Ch. Pati is in de-jure possession of the purchased

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land. Taking note of the settled legal position it was further held that deed of cancellation being a unilateral

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document has no force in the eye of law and that the right accrued by means of a registered document cannot

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be taken away by a deed of cancellation. The plea that

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consideration amount was not paid was brushed aside to

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hold that the same does not invalidate the sale deed. It

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R.S.A. No. 466 of 2013 Page 6 of 16

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was thus held that Golakh Ch. Pati had acquired valid right, title, interest and possession over the suit land. As regards possession, it was held that the same, for the purpose of Order XXI Rules 100 and 101 means actual possession and not constructive possession. In the facts of the case, it was evident that Golakh was not in actual physical possession. As such it was held that the provision under Order XXI Rule 99 does not apply. The CMA was thus dismissed.

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6. Being aggrieved, both Golakh Ch. Pati as well as Mayadhar Behera preferred independent appeals, both of which were heard together and as already stated, were disposed of by a common judgment.

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7. The First Appellate Court, after taking note of the rival contentions reversed the finding of the trial Court on the ground that the sale deed was executed by Mayadhar Behera on 2.3.2005 and the Civil Suit No.28/2005 was filed on 31.3.2005, i.e. after 28 days of the sale without impleading Golakh Ch. Pati as a party. So, from the very inception he had the intention to cheat Golakh Ch. Pati. The subsequent act of retaining the

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R.S.A. No. 466 of 2013 Page 7 of 16

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original sale deed and executing cancellation deed is an afterthought. Further, Mayadhar Behera also did not assign any reason as to why he remained silent from 2.3.2005 to 19.2.2008 without challenging the sale deed even though he claimed that Golakh Ch. Pati had not paid him the consideration amount. It was thus, held that the trial court had rightly held that Golakh Ch. Pati had right, title, interest over the case land and when Mayadhar Behera got a declaration in the Civil Suit that he has right, title and interest and possession was delivered in the execution case, there is no reason to hold that Golakh Ch. Pati was not dispossessed from the suit land as he had lost his right and control over the land to put it to his use. It was therefore, held that Golakh Ch.

¶48

Pati was dispossessed from the case land in Execution Case No.12/2013. The First Appellate Court also found the property to have been properly described. With regard to limitation, it was held that delivery of possession was given to Mayadhar Behera in the Execution Case on 19.8.2008 and the application under

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Order XXI Rule 99 C.P.C. was filed on 8.1.2009 i.e.

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R.S.A. No. 466 of 2013 Page 8 of 16

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beyond the period of one month. However, Golakh Ch. Pati had explained in his application that he had filed an application before his dispossession under Order XXI Rule 97 of C.P.C. on 25.6.2008 and also filed an application for amendment to treat it as one under Order XXI Rule 99 of C.P.C. when he came to know about his dispossession. However, in order to avoid complication he filed an application afresh under Order XXI Rule 99 C.P.C. The First Appellate Court found Golakh Ch. Pati to have been all along diligent to protect his possession even before his dispossession and the benefit under Section 14(2) is available to him. Further, taking note of the intention of the parties as being clear and unambiguous as reflected in the recitals of the sale deed, it was held that the trial Court should not have dismissed the application of Golakh Ch. Pati. On such findings, the appeal filed by Golakh Ch. Pati was allowed and the one filed by Mayadhar Behera was dismissed.

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8. Being further aggrieved, this appeal has been preferred by Mayadhar Behera, which was admitted on the following substantial questions of law;

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R.S.A. No. 466 of 2013 Page 9 of 16

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(1) Whether for the purpose of filing an application under Order XXI Rule 99 C.P.C., the period of limitation as prescribed under Article 128 of the Limitation would apply?

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(2) Whether the courts below have misconstrued the provisions of Order 21 Rule 97 and Order XXI Rule 99 of the Code while dealing with the application filed by the appellant in extending the benefit to the respondent which was not available both on fact and law?

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9. Heard Mr. Soumya Mishra, learned counsel for the appellant- Mayadhar Behera and Mr. L. Sarangi, learned counsel for the Respondent- Golakh Ch. Pati.

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10. Mr. Mishra would argue that the application under Order XXI Rule 99 was completely barred by limitation. The initial application filed under Order XXI Rule 97 was dismissed for non-prosecution. Had he pursued the application for amendment of the said application, Section 14 would have come to play, but he chose not to press the said application but only after filing the application under Order XXI Rule 99. Having done so, he could not have been granted the benefit of exclusion of time envisaged under Section 14 of the Limitation Act.

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Mr.Mishra further argues that both the applications filed

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R.S.A. No. 466 of 2013 Page 10 of 16

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by Golakh Ch. Pati are misconceived inasmuch as never being in possession he could not have filed application under Order XXI Rule 97 C.P.C. for protection of his possession and for the same reason, he cannot be treated to have been dispossessed so as to maintain an application under Order XXI Rule 99 of C.P.C. Mr. Mishra further argues that the First Appellate Court failed to appreciate that possession within the meaning of Order XXI Rule 99 C.P.C. is the actual physical possession and not constructive possession as held by the First Appellate Court.

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11. Per contra, Mr. Sarangi would argue that admittedly, title passed to Golakh Ch. Pati by virtue of the sale deed. When he came to know about filing of the suit by Mayadhar Behera against his vendor, he filed application under Order XXI Rule 97 C.P.C. to protect his possession. From the objection filed by Mayadhar Behera to such application on 1.10.2008 he came to know that the decree passed in the suit had been executed. He therefore, filed an application to amend his application under Order XXI Rule 97 to Order XXI Rule

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R.S.A. No. 466 of 2013 Page 11 of 16

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99 of C.P.C. Mayadhar Behera filed objection to such application on 24.11.2008. Golakh Ch. Pati thereafter filed an application under Order XXI Rule 99 on 8.1.2009 and thereafter not pressed his earlier application. Since the application under Order XXI Rule 97 of C.P.C. was pending all through, the benefit under Section 14 (2) of the Limitation Act squarely applies.

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12. From the rival contentions, it is evident that the first question that falls for consideration is the issue of limitation, the answer to which will govern both the substantial questions of law as framed. It has been urged that the application under Order XXI Rule 99 C.P.C. was barred by limitation and since Section 5 of the Limitation Act does not apply, the delay cannot be condoned. Reference to certain relevant dates would be in order at this stage. Golakh Ch. Pati initially filed an application under Order XXI Rule 97 on 23.6.2008 apprehending dispossession. On 1.10.2008, Mayadhar Behera filed objection whereupon Golakh Ch. Pati came to know about execution of the decree. On 18.11.2008, he sought

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R.S.A. No. 466 of 2013 Page 12 of 16

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amendment of the application to treat it as one under Order XXI Rule 99. Mayadhar filed an objection to such application on 24.11.2008. On 8.1.2009 the application under Order XXI Rule 99 was filed. The application under Order XXI Rule 97 was dismissed as not pressed on 19.1.2009. Thus, from the above sequence of events, it is evident that the application under Order XXI Rule 99 C.P.C. was filed during pendency of the application under Order XXI Rule 97 C.P.C. Such being the case, the next question that arises is, whether Section 14 of Limitation Act would come to the aid of the applicant. Section 14(2) reads as follows;

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“14(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.”

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13. Since it has been argued that the application under

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Order XXI Rule 97 was not maintainable as the applicant

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R.S.A. No. 466 of 2013 Page 13 of 16

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was never in possession, accepting such argument would imply that the application under Order XXI Rule 97 was wrongly filed. If the applicant is held to have been dispossessed by such time then the proper course would have been to file application under Order XXI Rule 99 of C.P.C. which he did file on 8.1.2009 when the previous application was pending. This being the fact-situation, it is difficult to hold that the benefit under section 14(2) would be available to the applicant as it would tantamount to invocation of the jurisdiction of the Court under two distinct provisions, i.e. Order XXI Rule 97 and Order XXI Rule 99 simultaneously. Section 14 (2) would come into play when the first application is disposed of, not when it is pending.

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14. Turning to the question whether the period of limitation prescribed under Article 128 of the Limitation Act would apply, it would be proper to refer to the said provision which is reproduced below;

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“Art.128. For possession by one dispossessed of immovable property and disputing the right of the decree holder or

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R.S.A. No. 466 of 2013 Page 14 of 16

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purchaser at a sale in execution of a decree.”

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This obviously refers to a situation as the one involved in the present case. Therefore, there cannot be any doubt that the period of limitation for filing application under Order XXI Rule 99 C.P.C. is 30 days from the date of dispossession. As already stated, this Court for reasons indicated, has found that the benefit of exclusion of time envisaged under Section 14(2) would not be available to the applicant- Golakh Pati. Therefore, this Court cannot concur with the finding of the First Appellate Court that the application under Order XXI Rule 99 C.P.C. was within time. It is held that the application under Order XXI Rule 99 was barred by limitation. Further, in view of the express bar contained in Section 5 of the limitation Act for its application to any of the provisions of Order XXI, the period of limitation has to be construed strictly without there being any scope whatsoever for condonation of delay that might have occurred. The substantial questions of law are answered accordingly.

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R.S.A. No. 466 of 2013 Page 15 of 16

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15. For the foregoing reasons therefore, this Court holds that the impugned judgment warrants interference. Resultantly, the appeal succeeds and is therefore, allowed. The impugned judgment and decree are hereby set aside. There shall be no order as to costs.

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…………….……..………. Sashikanta Mishra, Judge

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Ashok Kumar Behera

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Signature Not Verified

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Digitally Signed Signed by: ASHOK KUMAR BEHERA Reason: Authentication Location: High Court of Orissa, C utta ck Date: 04-Sep-2025 18:16:42

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R.S.A. No. 466 of 2013 Page 16 of 16

Procedural history

How this case reached the court

AI extract

Order under challenge
Common judgment dated 23.9.2013 followed by decree dated 7.10.2013 of learned Addl. District Judge, Keonjhar in R.F.A. No.33/17 of 2013-2012 dismissing the appeal (of Mayadhar Behera) and confirming the order dated 21.3.2012 of learned Civil Judge (Sr. Division), Keonjhar in C.M.A. No.5/2009.¶3
Addl. District Judge, Keonjhar · 23.9.2013
Prior proceeding
Registered sale deed No.570 dated 2.3.2005 executed by Mayadhar Behera conveying Ac.0.10 decs out of Plot No.12, Khata No.33, Mouza Goudunibeda to Golakh Ch. Pati for a consideration of Rs.35,000/-.¶17
Prior proceeding
Mayadhar Behera had earlier purchased the case land along with other lands from one Haguru Machhua vide Registered Sale Deed No.544 dated 22.2.1977.¶19
Prior proceeding
Civil Suit (C.S. No.28/2005) filed by Mayadhar Behera on 31.3.2005 against his vendor Haguru Machhua for declaration of right, title, interest and confirmation of possession, including the lands sold to Golakh Ch. Pati; Golakh was not impleaded as a party.¶20
Prior proceeding
After obtaining a certified copy of the sale deed on 31.10.2007, Golakh Ch. Pati filed Mutation Case No.186/2008 before the Tahasildar, Keonjhar.¶20
Prior proceeding
Deed of cancellation bearing No.295 dated 19.2.2008 executed by Mayadhar Behera cancelling the RSD dated 02.3.2005.¶22
Prior proceeding
Execution Case No.12/2008 filed by Mayadhar Behera arising out of the decree in C.S. No.28/2005; delivery of possession of the suit land taken by him on 19.8.2008.¶22
Prior proceeding
C.M.A. No.37/2008 filed by Golakh Ch. Pati on 25.6.2008 under Order XXI Rule 97 C.P.C.; it remained pending and was ultimately dismissed as not pressed on 19.1.2009 (per para 66).¶22
Prior proceeding
C.M.A. No.5/2009 filed by Golakh Ch. Pati under Order XXI Rule 99 C.P.C. (filed 8.1.2009 per paras 49, 64 and 66) without pressing the previous C.M.A.; dismissed by order dated 21.3.2012 of the learned Civil Judge (Sr. Division), Keonjhar.¶22
Prior proceeding
Both parties preferred independent first appeals heard together and disposed of by common judgment dated 23.9.2013: R.F.A. No.32/2015 of 2013-12 (Golakh Ch. Pati) allowed; R.F.A. No.33/2017 of 2013-12 (Mayadhar Behera) dismissed.¶15
Prior proceeding
Present second appeal preferred by Mayadhar Behera and admitted on two substantial questions of law (paras 54-55).¶52

Mayadhar Behera v. Golakh Ch.Pati

Case brief

What is this about?

What did the court decide?

Mayadhar Behera v. Golakh Ch.Pati

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Statutes considered

Procedural history

Parties & counsel

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