Dismissed

Saleh Sayeed Jabri v. Gulzarilal Kedia

Telangana HC10 Oct 2014CRP/1600/2014

Case brief

AI extract

What is this about?

The High Court dismissed civil revision petitions challenging the execution court's order restoring an execution petition dismissed for default. The Court held that Section 5 of the Limitation Act applies to such cases and found no error in condoning the 721-day delay due to the respondent's ill health.

What did the court decide?

The civil revision petitions are dismissed; there shall be no order as to costs and miscellaneous petitions stand disposed of.

Saleh Sayeed Jabri Vs Gulzarilal Kedia — Execution and Attachment | Telangana HC (2014)

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THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY

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C.R.P.Nos.1564, 1600, 2430 & 2431 OF 2014

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COMMON ORDER:

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These four revisions arise out of the execution proceedings initiated in O.S.No.1947 of 1988 on the file of the II Senior Civil Judge, City Civil Court, Hyderabad.

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The suit was filed for the relief of specific performance of agreement of sale, dated 31.07.1978. It was decreed on 06.09.1991. After the decree became final, the decree holders filed E.P.No.46 of 2001. E.P. was dismissed for default on 07.12.2011. Thereupon, the decree holders filed E.A.No.77 of 2014 under Rule 106 of Order XXI C.P.C. with a prayer to restore the E.P. Since there was delay of 721 days in filing it, they filed E.A.No.19 of 2014 under Section 5 of the Limitation Act. The applications were opposed by the judgment debtors. After hearing both the parties, the Executing Court allowed the applications through order, dated 21.04.2014. While the defendant/judgment debtor No.8 filed C.R.P.Nos.1564 and 1600 of 2014, the legal representatives of the defendant/judgment debtor No.4 filed C.R.P.Nos.2430 and 2431 of 2014, respectively, against the orders in E.A.Nos.19 and 77 of 2014.

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Heard M/s. C. Subba Rao and A. Narasimha Rao, learned counsel for the petitioners, and Sri T.V.S. Prabhakar Rao, learned counsel for the respondents.

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Two contentions are urged on behalf of the petitioners. The first is that the very filing of the application under the Limitation Act is impermissible in execution proceedings and the second is

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condonation of delay.

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The petitioners are under the impression that the period of limitation for filing an application to set aside the dismissal order of an E.P. under Rule 106, namely 30 days, is absolute. If that were to be so, no application is filed to set aside the order through which an E.P. was dismissed for default, after the stipulated period. The reason is that just as the limitation for filing a suit cannot be extended for whatever reason, the limitation prescribed for Execution Petitions and applications, cannot be extended. The delay in filing the applications beyond such limitation cannot be condoned. However, the State of Andhra Pradesh added

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sub-rule (4) to Rule 106 of Order XXI C.P.C., making the provisions of Section 5 of the Limitation Act applicable to the petitioners that may be filed under sub-rule (3) thereof.

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“The provisions of Section 5 of the Limitation Act, 1963 shall apply to all applications under sub-rule (3).”

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Therefore, the first contention of the petitioners cannot be accepted.

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Coming to the second contention; the plea of the respondents/decree holders was that the person, who was pursuing the matter, has suffered serious ill health and on account of that he could not pursue the proceedings at the relevant point of time. The E.P. was pending for ten years, hardly with any progress, by the time it was dismissed for default. Howsoever interested a party may be, to pursue the proceedings with a required amount of rigor, he cannot be expected to be attentive for decades together. The ill health suffered by the person is substantiated through relevant material. The executing Court has taken correct view of the matter. This Court does not find any error in the orders passed by the trial Court.

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Hence, the Civil Revision Petitions are dismissed. There shall be no order as to costs.

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The miscellaneous petitions filed in the Civil Revision Petitions shall stand disposed of.

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___________________ L.NARASIMHA REDDY, J 10.10.2014 KH

Saleh Sayeed Jabri v. Gulzarilal Kedia

Case brief

What is this about?

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Saleh Sayeed Jabri v. Gulzarilal Kedia

Case brief

What is this about?

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