S 5 of limitation Act is not applicable to filing of execution application

 

Under the scheme of the Limitation Act, execution applications, like plaints have to be presented in the Court within the time prescribed by the Limitation Act. A decree holder does not have the benefit of exclusion of the time taken for obtaining the certified copy of the decree like the appellant who prefers an appeal, much less can he claim to deduct time taken by the Court in drawing up and signing the decree. 
In this view of the matter, the High Courts of Patna and Calcutta in Sri Chandra Mottli Deva v. Kumar Binoya Nand Singh and Ors. MANU/BH/0057/1976 : AIR (1976) Pat 208 and Sunderlal & Sons v. Yagendra Nath Singh and Anr. MANU/WB/0090/1976 : AIR1976Cal471 have correctly laid down the law; the opinion to the contra expressed by the High Court of Calcutta in Ram Krishna Tarafdar v. Nemai Krishna Tarafdar and Ors. MANU/WB/0035/1974 : AIR1974Cal173 is wrong. Section 5 of the Limitation Act has no application; Section 12(2) of the Limitation Act is also inapplicable to an execution petition. If the time is reckoned not from the date of the decree but from the date when it is prepared, it would amount to doing violence to the provisions of the Limitation Act as well as of Order XX and order XXI Rule 11 C.P.C. which is clearly impermissible.
Period of limitation under Article 136 of the Limitation Act runs from the date of the decree and not from the date when the decree is actually drawn up and signed by the Judge.
IN THE SUPREME COURT OF INDIA
Civil Appeal No. 5005 of 1999
Decided On: 14.09.1999
West Bengal Essential Commodities Supply Corporation Vs. Swadesh Agro Farming & Storage Pvt. Ltd. and Ors.
Hon'ble Judges/Coram:
K. Venkataswami and S.S.M. Quadri, JJ.
Citation: (1999) 8 SCC 315

1. Leave is granted.

2. The short but a question of some significance which arises for consideration in this appeal, is whether the period of limitation, under Article 136 of the Limitation Act, 1963, will start from the date of the decree or from the date when the decree is actually drawn up and signed by the judge.

3. The facts giving rise to the question may be noticed here.

4. On June 11, 1980, the appellant filed Suit No. 504 of 1980 in the High Court of Judicature at Calcutta against the respondents for recovery of a sum of Rs. 82, 933.80 with interest. On March 8, 1982, the High Court decreed the suit ex-parte for the said amount with interest thereon at the rate of 6% per annum. However, the decree was actually drawn up and signed by the learned Judge on August 9, 1983. The appellant filed application, G.A. No. 374 of 1995, for execution of the decree before the High Court on June 5, 1995. The learned Executing Judge ordered execution of the decree. But, on appeal by the respondents, the Division Bench of the High Court set aside the order of the learned Executing Judge holding that the execution petition was barred by limitation under Article 136 of the Limitation Act and thus allowed the appeal on September 30, 1997. That judgment and order is challenged by special leave, in this appeal.

5. Mr. Tapas Ray, learned senior counsel appearing for the appellant, has argued that for purposes of Article 136 of the Limitation Act, the starting point of limitation is not the date of the decree but the date when the decree becomes enforceable; it was only when the decree was actually drawn up and signed, after a lapse of one year and three and three months of delivering the judgment, that it became enforceable, and from that date the appellant was entitled to the benefit of full period of limitation; so its application for execution could not be held to be barred by limitation. According to Mr. Ray, for an application under Order XXI Rule 11(2) of the CPC, a copy of the decree must be available and the period of limitation must be reckoned from the date when the Court was in a position of making a copy of the decree available as it was on that, date the decree became executable. The learned counsel urged that Rule 11(2) of Order XXI must be read with Rules 6 and 7 of Order XX C.P.C. and so read, for purposes of execution, the decree would come into existence only when it was actually drawn up and signed and not on the date when the judgment was pronounced.

6. Mr. P. Bhaskar Gupta, learned senior counsel for the respondents, has submitted that under Rule 6A(2)(b) of Order XX C.P.C., for purposes of execution of the decree the last portion of the judgment itself will be treated as a decree, irrespective of the date when the decree is actually drawn up and signed and that under Rule 7 of Order XX C.P.C. the decree has to bear the date of the judgment; from the date of the judgment till the expiry of the period of limitation, the decree holder had the opportunity of executing the decree so he cannot have any grievance for late drawing up of the decree and stamping the date of the judgment on it. Learned senior counsel invited our attention to Sub-rule (3) of Rule 11 of Order XXI C.P.C. and contended that the Executing Court might require the applicant seeking execution of the decree under Sub-rule (2) to produce a certified copy of the decree, but the execution petition need not be accompanied by a certified copy of the decree. Sections 12(2) and 5 of the Limitation Act, submitted the learned Counsel, did not apply to execution petitions and if the contention of the appellant were to be accepted then it would amount to rewriting those provisions so as to provide for excluding the time for preparation and signing of the decree; therefore, that contention is liable to be rejected.

7. On the above contentions, we shall commence the determination of the question by first reading Article 136 of the Limitation Act which is as follows:

"136. For the execution of any decree (other than a decree granting a mandatory injunction) or order of any Civil Court. Twelve years [When] the decree or order becomes enforceable or where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods when default in making the payment or delivery in respect of which execution is sought takes place: 

Provided that an application for the enforcement or execution of a decree granting a perpetual injunction shall not be subject to any period of limitation."

8. From a perusal of the Article, extracted above, it is clear that for execution of any decree (other than a decree granting a mandatory injunction) or order of a civil court, a period of 12 years is prescribed; Column 3 contains two limbs indicating the time from which period of limitation begins to run, that is, the starting point of limitation; they are: (i) when the decree or order becomes enforceable and (ii) where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods when default in making the payment or delivery in respect of which execution is sought, takes place. The proviso says that there shall be no period of limitation for enforcement or execution of decree granting a perpetual injunction. We are concerned here with the first of the above-mentioned starting points, namely, when the decree or an order becomes enforceable.

A decree or order is said to be enforceable when it is executable. For a decree to be executable, it must be in existence. A decree would be deemed to come into existence immediately on the pronouncement of the judgment. But it is a fact of which judicial notice may be taken of that drawing up and signing of the decree takes some time after the pronouncement of the judgment; the CPC itself enjoins that the decree shall be drawn up expeditiously and in any case within 15 days from the date of the judgment. If the decree were to bear the date when it is actually drawn up and signed then that date will be incompatible with the date of the judgment. This incongruity is taken care of by Order XX Rule 7 C.P.C. which, inter alia, provides that the decree shall bear the date and the day on which the judgment was pronounced.

9. To enable a person who would like to execute the decree before it is actually drawn up, Rule 6A is inserted in the Code by the Amendment Act, 1976 (Act 104/76), which is extracted hereunder:

6-A. Last paragraph of judgment to indicate in precise terms the reliefs granted--

(1) The last paragraph of the judgment shall state in precise terms the relief which has been granted by such judgment.

(2) Every endeavour shall be made to ensure that the decree is drawn up as expeditiously as possible, and, in any case, within fifteen days from the date on which the judgment is pronounced; but where the decree is not drawn up within the time aforesaid, the Court shall, if requested so to do by a party desirous of appealing against the decree, certify that the decree has not been drawn up and indicate in the certificate the reasons for the delay, and thereupon-

(a) an appeal may be preferred against the decree without filing a copy of the decree and in such a case the last paragraph of the judgment shall, for the purposes of Rule 1 of Order XLI, be treated as the decree; and

(b) so long as the decree is not drawn up, the last paragraph of the judgment shall be deemed to be the decree for the purpose of execution and the party interested shall be entitled to apply for a copy of that paragraph only without being required to apply for a copy of the whole of the judgment; but as soon as a decree is drawn up, the last paragraph of the judgment shall cease to have the effect of a decree for the purpose of execution or for any other purpose:

Provided that, where an application is made for obtaining a copy of only the last paragraph of the judgment, such copy shall indicate the name and address of all the parties to the suit.

10. Rule 6A enjoins that the last paragraph of the judgment shall state in precise terms the relief which has been granted by such judgment. It has fixed the outer time limit of 15 days from the date of the pronouncement of the judgment within which the decree must be drawn up. In the event of the decree not so drawn up, Clause (a) of Sub-rule (2) of Rule 6A enables a party to make an appeal under Rule 1 of Order XLI C.P.C. without filing a copy of the decree appealed against and for that purpose the last paragraph of the judgment shall be treated as a decree. For the purpose of execution also, provision is made in Clause (b) of the said Sub-rule which says that so long as the decree is not drawn up, the last paragraph of the judgment shall be deemed to be a decree. Clause (b) has thus enabled the party interested in executing the decree before it is drawn up to apply for a copy of the last paragraph only, without being required to apply for a copy of the whole of the judgment. It further lays down that the last paragraph of the judgment shall cease to have the effect of the decree for purposes of execution or for any other purposes when the decree has been drawn up.

11. It follows that the decree became enforceable the moment, the judgment is delivered and merely because there will be delay in drawing up of the decree, it cannot be said that the decree is not enforceable till it is prepared. This is so because an enforceable decree in one form or the other is available to a decree holder from the date of the judgment till the expiry of the period of limitation under Article 136 of the Limitation Act.

12. In Rameshwar Singh v. Homeswar Singh AIR (1921) PC 31 it was held:

They (Their Lordships) are of opinion that in order to make the provisions of the Limitation Act apply, the decree sought to be enforced must have been in such a form as to render it capable in the circumstances of being endorsed.

13. There may, however, be situations in which a decree may not be enforceable on the date it is passed. First a case where a decree is not executable until the happening of a given contingency, for example, when a decree for recovery of possession of Immovable property directs that it shall not be executed till the standing crop is harvested, in such a case time will not begin to run until harvesting of the crop and the decree becomes enforceable from that date and not from the date of the judgment/decree. But where no extraneous event is to happen on the fulfilment of which alone the decree can be executed it is not a conditional decree and is capable of execution from the very date it is passed (Yeshwant Deorao v. Walchand Ramchand MANU/SC/0033/1950 : [1950]1SCR852 ). Secondly, when there is a legislative bar for the execution of a decree then enforceability will commence when the bar ceases. Thirdly, in a suit for partition of Immovable properties after passing of preliminary decree when, in final decree proceedings, an order is passed by the court declaring the rights of the parties in the suit properties, it is not executable till final decree is engrossed on non-judicial stamp paper supplied by the parties within the time specified by the Court and the same is signed by the Judge and sealed. It is in this context that the observations of this Court in Shankar Balwant Lokhande (Dead) by LRs. v. Chandrakant Shankar Lokhande and Anr. MANU/SC/0243/1995 : (1992)IILLJ18SC have to be understood. These observations do not apply to a money decree and , therefore, appellant can derive no benefit from them.

14. In the instant case, the decree is a money decree. The decree became enforceable immediately on the pronouncement of the judgments as thereupon a deemed decree came into existence. It cannot, therefore, be said that the delay in drawing up of the decree renders it unenforceable from the date of the judgment.

15. The next contention of Mr. Ray is that due to the court taking more than a year and three months to draw up and sign the decree, the period of limitation of 12 years, available to the appellant, is cut short so the starting point of limitation has to be computed from the date of signing of the decree to avert hardship and prejudice to him. The submission appears to be attractive, but falls to scrutinizing. The argument is obviously based on the maxim "actus curiae neminem gravabit" (an act of the court shall prejudice no man). It would apply to relieve a party of the hardship or prejudice caused due to the act of the Court. But to invoke this maxim it is not enough to show that there is delay in drawing up of the decree, it must also be shown that the appellant has suffered some hardship or prejudice due to the delay of the Court. In other words, there must be a nexus between the act of the court complained of and the hardship or prejudice suffered by the party.

16. In Raj Kumar Dey and Ors. v. Tarapada Dey and Ors. MANU/SC/0018/1987 : [1988]1SCR118 , the Calcutta High Court had quashed the registration of the award on the ground that it was presented for registration beyond time. This Court applying, inter alia, the above maxim held that the High Court was in error in quashing the registration of the award. There, during the material period, the award was in the custody of the Court and the arbitrator, inspite of his efforts, could not have got it registered; it was presented for registration the very next day it was returned to the arbitrator.

17. In Gursharan Singh and Ors. v. New Delhi Municipal Committee and Ors. MANU/SC/0313/1996 : [1996]1SCR1154 this Court granted interim directions in favour of the appellants to pay licence fee at the concessional rate. At the time of final disposal, it was found that the appellants were not entitled to the concessional rate. Applying the maxim "actus curiae neminem gravabit", the respondents were ordered to be paid the balance amount together with interest.

18. In these cases, as can be seen, there was nexus between the action of the Court and the prejudice suffered by the party. But, in the instant case, there is no nexus between drawing up of the decree after more than a year from the date of the judgment and its execution petition getting barred by limitation. It may be noticed here that the scheme of the Code, having taken note of the delay in preparation and signing of the decree, provides enough safeguards to the parties to execute the decree from the date of the judgment/ decree till the expiry of the period of limitation.

19. The decree-holder could have enforced the money decree immediately on the pronouncement of the judgment by making an oral application under Sub-rule (1) of Rule 11 of Order XXI C.P.C. For filing an application under Sub-rule (2) of Rule 11 C.P.C., a copy of the decree need not be enclosed. What all Sub-rule (3) of the said Rule says is that the Court may require the applicant under Sub-rule (2) to produce a certified copy of the decree. On being required to do so, it could have produced the last portion of the judgment which has the effect of the decree under Rule 6A of Order XX C.P.C. It is not a case where the appellant lost the period of limitation because of any act of the Court but it is a case where the appellant failed to apply for execution of the decree for reasons best known to it and how seeks to take advantage of the fact that the Court took time for drawing up and signing the decree. In our view, the delay in drawing up and signing the decree did not cause any prejudice to him. There is no nexus between the late drawing up of decree by the Court and the filing of the execution petition by the appellant after the expiry of the limitation.

20. Under the scheme of the Limitation Act, execution applications, like plaints have to be presented in the Court within the time prescribed by the Limitation Act. A decree holder does not have the benefit of exclusion of the time taken for obtaining the certified copy of the decree like the appellant who prefers an appeal, much less can he claim to deduct time taken by the Court in drawing up and signing the decree. In this view of the matter, the High Courts of Patna and Calcutta in Sri Chandra Mottli Deva v. Kumar Binoya Nand Singh and Ors. MANU/BH/0057/1976 : AIR (1976) Pat 208 and Sunderlal & Sons v. Yagendra Nath Singh and Anr. MANU/WB/0090/1976 : AIR1976Cal471 have correctly laid down the law; the opinion to the contra expressed by the High Court of Calcutta in Ram Krishna Tarafdar v. Nemai Krishna Tarafdar and Ors. MANU/WB/0035/1974 : AIR1974Cal173 is wrong. Section 5 of the Limitation Act has no application; Section 12(2) of the Limitation Act is also inapplicable to an execution petition. If the time is reckoned not from the date of the decree but from the date when it is prepared, it would amount to doing violence to the provisions of the Limitation Act as well as of Order XX and order XXI Rule 11 C.P.C. which is clearly impermissible.

21. In the result, we hold that the period of limitation under Article 136 of the Limitation Act runs from the date of the decree and not from the date when the decree is actually drawn up and signed by the Judge. We, therefore, do not find any illegality in the impugned judgment of the High Court. The appeal fails and it is accordingly dismissed. No costs.

After Issuance of 41-A CrPC notice, Police Can't arrest Without obtaining permission from the Magistrate

 THE HON’BLE SMT. JUSTICE LALITHA KANNEGANTI

 CRIMINAL PETITION No.824 of 2022

 ORDER 

This petition is filed under Section 438 of the Code of Criminal Procedure, 1973, seeking bail to the petitioner/A.1 in the event of his arrest in connection with Crime No.109 of 2021 of Central Crime Station, WCO TeamV, Hyderabad, registered for the offences punishable under Sections 406, 420 read with Section 34 IPC. 

2. The case of prosecution is that the de facto complainant lodged a complaint stating that in September, 2020, he came into contact with A1 through his friend Ibrahim and that A1 has introduced himself as Doctor in Virinchi Hospital and running a clinic at Narayanaguda. In January, 2021, A1 has requested the de-facto complainant to provide a sum of Rs. 45,00,000/- and assured to repay the same with good interest on or before 01.03.2021, and on believing his words, he paid an amount of Rs.25,00,000/- on 16.01.2021 and Rs.20,00,000/- on 21.01.2021 by procuring the said amounts from his friends. But, on completion of the said period, A1 and his father/A2 dodged the matter and on several requests, A1 has issued a cheque for a sum of Rs.10,00,000/-, but the same was bounced on its presentation before the Bank, thereby cheated him. 

3. Learned Counsel for the petitioner Mr.Rajender Khanna, submits that earlier in Crl.P.No.8721 of 2021 filed by petitioner for pre-arrest bail, this Court has directed the police concerned to follow the procedure under Section 41-A Cr.P.C., and the guidelines formulated by the Hon’ble Supreme Court in Arnesh Kumar v. State of Bihar1 . Learned counsel submits that after disposal of the said petition, petitioner was issued notice under Section 1 (2014) 8 SCC 273 LK, J Crl.P.No.824 of 2022 2 41-A Cr.P.C., and he has appeared before the police on two occasions, and whenever he appeared before them, there was no receipt of acknowledgment from the police and he was constrained to sent all the relevant material to the Director General of Police as well as Commissioner of Police. He further submits that in all the cases where notice under Section 41-A Cr.P.C., was issued, the police are not issuing any acknowledgment and some times, they are coming up saying that the accused is not cooperating with the investigation and taking steps to arrest the accused, and hence, the petitioner’s case may be considered for grant of pre-arrest bail.

4. On the other hand, learned Assistant Public Prosecutor submits the police have issued notice under Section 41-A Cr.P.C., and they are already following the guidelines formulated by the Apex Court in Arnesh Kumar’s case (supra). He further submits that the police are going to file a report before this Court in another case about the procedure to be adopted. 

5. This Court has already directed the Director General of Police to frame guidelines with regard to issuance of acknowledgment in the cases where accused appears before the police under Section 41-A Cr.P.C., and the same cannot be at the whims and fancies of the police. If the accused feels that the police failed to follow the procedure under Section 41-A Cr.P.C. or the guidelines of the Apex Court in Arnesh Kumar’s case (supra), they could as well come before this Court by filing contempt petition against the concerned police officer with relevant material to substantiate their allegations, but on this basis, they cannot seek anticipatory bail. It is appropriate to mention that after issuance of notice under Section 41-A Cr.P.C., if the police feels that the accused has to be arrested, without obtaining the permission from the Magistrate concerned, they cannot arrest the accused. LK, J Crl.P.No.824 of 2022 3 

6. Accordingly, the Criminal Petition is disposed of, directing the police concerned to follow the procedure as contemplated under Section 41-A Cr.P.C., and the guidelines formulated by the Apex Court in Arnesh Kumar’s case (supra). 

7. Consequently, miscellaneous applications pending, if any, shall stand closed. 

________________________ LALITHA KANNEGANTI, J 7th February, 2022. sj

Pendente lite transferee of property from J.Dr has no independent right to property to resist, obstrcut or obejct execution of decree

 

HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO
CIVIL REVISION PETITION No.5514 of 2016
21-11-2016
Ramesh Gaikwad and another.petitioners
*N.S.Prakasam and another. Respondents
!Counsel for the petitioners : Sri Ch.Janardhan Reddy
^Counsel for the Respondents: Sri V.S.Somayajulu
<Gist :
>Head Note:
?Cases referred:
1999(2) Civil Court Cases 1 (S.C.)
2 AIR 1954 All 643 (DB)
3 AIR 1982 SC 818
4 (2008) 7 SCC 144
5 (1857) 1 De G & J 566
6 (1998) 3 SCC 723
7 (1996) 5 SCC 539
HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO
CIVIL REVISION PETITION No.5514 of 2016

OR

DER:

ORDER:

The revision petitioners are the claim petitioners in E.A.No.79 of 2013 in E.P.No.121 of 2008 in O.S.No.1675 of 2001 and along with the claim petition, they filed a stay application in E.A.No.78 of 2013. They are claiming through Judgment Debtor (for short J.Dr.) as pendentilite alienees. The E.A.No.79 of 2013 was ended in dismissal and to restore the same, E.A.No.177 of 2016 was filed and the same was ended in dismissal on merits on 28.04.2016 by order of the Executing Court-cum-VII Senior Civil Judge, City Civil Court, Hyderabad and impugning the same, present revision is maintained.

2. The suit O.S.No.1675 of 2001 was filed on 30.08.2001 by the plaintiff by name, N.S.Prakasam (revision 1st respondent- cum-Decree Holder (for short D.Hr.) of O.S.No.1675 of 2001) against V.Dasarath (revision 2nd respondent J.Dr.), for specific performance of the contract for sale and the suit was decreed, ex parte with a direction to the defendant to receive the balance sale consideration and execute sale deed within 30 days from date of said decree in favour of the plaintiff and to pay costs.

3. It is pursuant to said decree, the revision 1st respondent- D.Hr. obtained registered sale deed through Court. It was in the course of execution, E.P.No.121 of 2008 was filed under Order XXI Rule 35 C.P.C. by said D.Hr. against the J.Dr. thereby the decree became final and even the so alleged earlier dismissal of E.P.No.152 of 2003 and on what merits, order copy not even filed to consider the contest of that earlier dismissal of E.P. operates as resjudicata though there is no resjudicata for fresh execution petition despite opportunity and sufficient time, suffice to draw adverse inference, apart from what is laid down in Iswar Bhai C. Patel & Bachu Bhai vs. Harihar Behera to draw adverse inference against J.Dr. for not even chosen to come to witness box, much less to demonstrate the record.

4. Coming to the other contention of the D.Hr. filed another suit in O.S.No.1830 of 2003 for recovery of possession that was rejected on contest by the J.Dr. as defendant, pursuant to order in I.A.No.796 of 2004 on 07.07.2006; the D.Hr. filed certified copy of the plaint and the order in I.A.No.796 of 2004 of O.S.No.1830 of 2003 and the plaint rejected was by opining that a reading of Section 28(4) of the Specific Relief Act makes it clear of no separate suit is required, as relief of possession can be asked after decree obtained under execution as held in Pt. Balmukand v. Veer Chand that in a suit for specific performance even possession not asked and not specifically decreed, once decree granted for specific performance of contract for sale that includes everything incidentally to be done to complete the sale transaction for the rights and obligations of the parties are being arisen statutorily under Section 55 of the Transfer of Property Act and the ratio squarely applies herein.

5. For the above, the objections are over-ruled in permitting the D.Hr. to proceed with execution to deliver the property as per the sale warrant issued under Order XXI Rule 35 C.P.C.

6. In the E.P.No.121 of 2008, the order passed in favour of the D.Hr. for delivery of property by the J.Dr., even the decree is silent referring to the expressions, on 07.03.2011 undisputedly made final, for J.Dr. did not prefer appeal.

7. It is in that matter, the present claimants filed E.A.No.79 of 2013 and a petition in E.A.No.78 of 2013 for stay of the order for delivery passed in E.P.No.121 of 2008, on 07.03.2011. There was no stay granted therein undisputedly. It is while pendency of the E.A.No.79 of 2013 claim petition, the same was dismissed on 28.04.2016. It is impugning the said dismissal order under Order XXI Rule 106 and Section 151 C.P.C. E.A.No.177 of 2016 was filed and the restoration application filed in E.A.No.177 of 2016 was since dismissed, same is impugned in the present revision.

8. Factual matrix further in relation to the claim petition in E.A.No.79 of 2013 which is part of the material of the revision record filed by the claimants is that, both the claimants entered with the J.Dr. possessory sale agreement dated 02.01.2007 for self-same property covered by the specific performance decree in O.S.No.1675 of 2001 dated 28.02.2002, which is nearly five years after decree, the sale agreement entered. It is their claim that the J.Dr. of O.S.No.1675 of 2001 supra having entered the sale agreement on 02.01.2007 in favour of the two claimants for Rs.15 lakhs received advance amount of Rs.12 lakhs and agreed to receive balance of Rs.3 lakhs at the time of registration of sale deed to be executed, having delivered vacant possession of the property and also took further sum of Rs.50,000/- on 09.10.2009 having endorsed on the back of the agreement, and even the claimants are ready and willing to perform their part of the contract entered by the J.Dr. supra, he was dodging which made them to issue legal notice for specific performance on 14.11.2011, to register sale deed pursuant to the agreement dated 02.01.2007 and he avoided to receive notice, which made them to file the suit O.S.No.750 of 2011 which is pending on the file of II Additional Chief Judge, City Civil Court, Hyderabad, (since stated transferred and now pending on the file of 24th Additional Chief Judge, City Civil Court, Hyderabad) for specific performance of the contract for sale dated 02.01.2007. It is further averred referred to the facts in the claim petition in E.A.No.79 of 2013 particularly at paras 3 and 4 that the claimants came to know when Court bailiff came to the property on 21.08.2013 to attach the property and when they questioned about passing of the decree and attachment order and thereby the decree obtained against the J.Dr. by the D.Hr. in O.S.No.1675 of 2001 dated 28.02.2002, is unenforceable and the claim thereby to be adjudicated. The claimants also filed application to call for the original sale agreement dated 02.01.2007 and legal notice dated 14.11.2011 which were filed in the suit O.S.No.750 of 2011 for the purpose of marking in the claim petition and it is while so the claim petition was dismissed as referred supra while under enquiry, on 28.04.2016 for non-prosecution.

9. The affidavit averments of 1st claimant in E.A.No.177 of 2016 sought for restoration of E.A.No.79 of 2013 referred supra show that for conducting enquiry, chief examination affidavit of him filed on 15.07.2013 itself, he already filed O.S.No.750 of 2011 for specific performance of sale agreement dated 02.01.2007 and to call for the original sale agreement and notice filed in O.S.No.750 of 2011 to the claim petition record of E.A.No.79 of 2013 in E.A.No.436 of 2013 that was allowed on 04.09.2013 and the suit was later transferred to 24th Additional Chief Judge and they were under the impression that the matter will be proceeded after receipt of the documents only and their counsel could not appear before the Court as busy in attending care of his new born baby boy in hospital and thereby for non-appearance on 28.04.2016, the E.A.No.79 of 2013 was dismissed, though the non-appearance of his counsel was neither willful nor wanton but for the above reason, hence, to set aside the dismissal order and restore E.A.No.79 of 2013, else they will suffer prejudice and irreparable loss and injury.

10. Same was opposed by counter-affidavit of the D.Hr. while denying said averments that the Executing Court in the claim petition has given ample opportunities to the claim petitioners to appear before the Court and express their views and for the reasons best known to them neither the claimants nor their counsel attended the matter and after failure to attend the matter was finally posted to 28.04.2016 and on that day also neither the claimants nor their counsel attended with utter disregard to the Court of law and the allegation of they or their counsel were under the bonafide impression that matter will not be proceeded further until receipt of documents is baseless, so also the allegation of the advocate attended his new born baby child and busy there with and there is no mention as to why the claimants any of them did not even attend either during call work or even subsequent to that on that date, for the Court waited for a long time and having taken a right decision, after waiting with no option in dismissal for non-attendance and it no way requires interference much less to restore. The other averments were that the very suit for specific performance in O.S.No.750 of 2011 is not maintainable as the so called agreement in January, 2007 is long subsequent to the decree passed in O.S.No.1675 of 2001 and pursuant to the decree, there was a registered sale deed executed by the Court in execution of the decree, on 29.04.2003 itself and once the property through Court of law registered the subsequent entering of the sale agreement, no way gives any right to maintain a suit much less even pending suit to maintain the claim in E.A.No.79 of 2013 and the dismissal for non-proseuction on 28.04.2016 also no way requires restoration invoking Order XXI Rule 106 CPC and thereby sought for dismissal of the restoration application.

11. It is pursuant to the facts and from the averments and rival contest supra by impugned order dated 19.10.2016 the E.A.No.177 of 2016 was dismissed by the executing Court with observation in the order that, to say that their counsel on 28.04.2016 was busy in attending a new born baby in hospital and could not attend the Court on that date when same was opposed by counter with no truth therein, no proof even filed and there is no satisfactory explanation forthcoming from the claimants/petitioners and they did not even file sworn affidavit of said counsel to support that fact despite dispute and there is no explanation worth for non-appearance even by them on 28.04.2016, much less their counsel, and from a perusal of the record, it is evident that the E.A.No.79 of 2013 was coming for enquiry and it was finally posted to 28.04.2016 on payment of costs of Rs.200/- and they failed to pay costs imposed and there was no representation from their even and thereby it was dismissed for default and they suppressed the factum of conditional order in the sworn affidavit filed and thereby they are guilty of suppression of material facts, they did not come forward with any satisfactory explanation for their non-appearance and non-payment of costs and for no representation even and thereby ended in dismissal rightly on 28.04.2016and there are no bonafides in the application and thereby dismissed.

12. It is the contention impugning the same in the grounds of revision that unless the records of the II Additional Chief Judge received as called for in E.A.No.436 2013 in claim petition E.A.No.79 of 2013 it cannot be proceeded with and the executing Court ought to have seen that the affidavit filed for restoration application in E.A.No.177 of 2013 reasons are given and the lower Court did not give any reasons in dismissing the application, that too when the claimants are claiming rights in E.A.No.79 of 2013 over the house property, pursuant to the sale agreement dated 02.01.2007 in their favour executed by the J.Dr. and when the rights are involved over the house property, Court should have been decided E.A.No.79 of 2013 on merits and ought to have seen that E.P.No.121 of 2008 is filed for delivery of possession of the property in O.S.No.1675 of 2001 and same is not maintainable as beyond scope of decree passed in O.S.No.1675 of 2001 dated 28.02.2002 and that relief could not have been granted by the Executing Court of decree in O.S.No.1675 of 2001 and the relief sought in O.S.No.1675 of 2001 is only to execute sale deed and no relief regarding possession asked and seeking relief for delivery of possession in O.S.No.1830 of 2003 filed by the D.Hr. and thereby could not have maintained E.A.No.121 of 2008 in O.S.No.1675 of 2001 for delivery and for these grounds, the order of the lower Court is liable to be set aside.

13. Elaborate arguments in more than two sittings addressed by the learned counsel for the revision petitioners vis--vis claimants vis--vis learned counsel for the Decree Holder/revision respondent No.1. Respondent No.2 endorsed as not necessary party to the appeal.

14. Heard and perused the material on record.

15. Learned counsel for the revision petitioners, though addressed arguments at length regarding the very granting of relief for delivery of possession in E.A.No.121 of 2008 by impugning the same in the course of ultimate submission stated that deciding on merits of E.A.No.177 of 2016 is enough. However, the court cannot ignore when grounds are raised as referred supra in the revision impugning the very executability but to answer at least cursory.

16. The law is fairly settled right from the Division Bench expression of the Allahabad High Court in Pt. Balmukand (supra) that was followed by several expressions that referred the earlier expressions of the Calcutta High Court, Patna High Court, Allahabad High Court and referring to the said Division Bench of Allahabad in Pt. Balmukand (supra), several other High Courts delivered the expressions including Mysore High Court in 1973, Delhi High Court in 1975 and 1976, apart from the Apex Court on the scope of decree whether it tantamounts to beyond scope of the relief granted in the decree and referring to Joginder Singh v. State of Punjab (AIR 1979 SC 1876), from what is laid down by the Division Bench of Allahabad High Court in Pt. Balmukand (supra) the Apex Court in Babu Lal v. Hazari Lal Kishore Lal referring to the scope of Sections 21, 22 and 28 of the Specific Relief Act, 1963, Section 47 C.P.C. order II Rule 2 C.P.C. and Section 55 of the Transfer of Property Act, particularly in paras 11 to 16 and conclusion in paras 29 and 30 held that Section 22 of the Specific Relief Act provides that a person in a suit for specific performance of a contract for the transfer of immovable property, may ask for appropriate reliefs namely he may ask for possession or for partition or for separate possession including the relief of specific performance. These requirements he can claim notwithstanding anything contained in the C.P.C. contrary. Sub-section (2) of 22 of the Act specifically provides that all these requirements cannot be granted by the Court unless they have been specifically claimed. However, says, where the plaintiff has not specifically claimed in the initial stages, Court may permit the plaintiff at any stage of the proceedings to include one or more of the reliefs by means of amendment and on such terms, as it depends prayer the only purpose of this whole enacted provision is to avoid multiplicity of suits and that the plaintiff may get appropriate relief without being hampered by procedural complications. The expression in an appropriate case used in Section 22 is very significant. The expression only indicates that it is not always incumbent on the plaintiff to claim possession or partition or separate possession in a suit for specific performance of contract for the transfer of immovable property that is to be done, where the circumstances demanding the relief in the specific performance of a contract of sale expressed within its ambit not only the execution of the sale deed but also possession conveyed under the sale deed and it is not always be necessary for the plaintiff to specifically claim possession over the property as the relief of possession being inherent in the relief for specific performance of the contract for sale. Besides that, the Act provides for amendment on such terms as may be just for including a claim for such relief at any stage of the proceedings. In case where exclusive possession is with contracting party, a decree of specific performance of contract for same covered implicitly, as without specifically providing for delivery Court may not give complete relief to the D.Hr. nor can satisfy the decree against J.Dr. completely, Thus, he is bound not only to execute sale deed but also to put the property in possession of the D.Hr. This is in consonance with Section 55(1) of the Transfer of Property Act. The word proceeding has not been defined in the Act, that term is very comprehensive and it includes execution proceedings.

17. The expression of the Apex Court in Babulal (supra) thereby says even in a suit for specific performance prayer asked is only for specific performance of the contract for sale and no possession or other reliefs asked and sale deed once obtained, the possession can be asked by filing E.P. within the sweep of any proceeding or at any stage of the proceeding. Thus, it is untenable now to raise by the revision petitioners as claimants in E.A.No.79 of 2013 in the restoration application in E.A.No.77 of 2016 dismissed for default, saying in the E.P.No.121 of 2008 delivery through Court sought under Order XXI Rule 35 is unsustainable. In fact that contest of JDR already raised and on that contest the other suit plaint was rejected holding that a separate suit is not maintainable, but for the relief for possession can be asked in execution in the decree for specific performance granted though plaint is silent and decree is silent. Once that aspect thereby is made final, it is not left open to the claimants to re-agitate, for having no better rights than J.Dr. and fromt heir claim through only J.Dr. Once the relief can be asked and rightly granted for delivery invoking Order XXI Rule 32 C.P.C. as Order 21 Rule 35 delivery includes delivery under Order 21 Rule 95 CPC which says, where the immoveable property sold is in the occupancy of the judgment-debtor or of some person on his behalf or of some person claiming under a title created by the judgment-debtor subsequently to the attachment of such property and a certificate in respect thereof has been granted under Rule 94 CPC, the Court shall, on the application of the purchaser, order delivery to be made by putting such purchaser or any person whom he may appoint to receive delivery on his behalf in possession of the property, and, if need be, by removing any person who refuses to vacate the same. The rule is very clear of not only the J.Dr. but also the persons claimed through J.Dr. are also bound to deliver possession.

18. Once this is the proposition of law even there is an obstruction, re-delivery invoking Rule 35 CPC itself can be asked by the D.Hr, leave about other available provisions either Section 94 or 151 CPC or specifically under Rule 74 CPC arrest of J.Dr. or any persons claiming through J.Dr. or for break open locks or for police aid from any person bound by the decree, if causes obstruction. A reading of Order XXII Rule 10 CPC it is no way applicable to execution from the wording of equally Order XXII Rule 12 CPC which says rules 3, 4 and 8 of Order XXII have no application to the execution. Section 146 CPC is comprehensive enough from the very wording of save as otherwise provided by this Code or by any law for the time being in force, where any proceedings may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him. The Section is very clear of not only the J.Dr. but also any person claiming through J.Dr. are also bound by the decree to submit delivery of possession to D.Hr. Once such is the case, leave about O.S.No.750 of 2011 claimed by the D.Hr. in the counter to E.A.No.79 of 2013 as not maintainable, as person bound by the decree i.e., J.Dr. and his subsequent alienee are equally bound by the decree and in claiming through J.Dr., the claimants are not entitled for specific performance against J.Dr. that too behind the back of the D.Hr. herein. Leave about D.Hr. herein made an attempt to come on record in O.S.No.750 of 2011 that was opposed by the claimants herein as plaintiff therein on the concept of dominus litus that was ended in dismissal that is even no way a finality, as a Court got power invoking under Order I (2) C.P.C. at any stage of a proceeding to impelad any necessary or proper party even without request of a party or third party. It is thus on the scope of lis covered- by O.S.No.750 of 2011 where this Court - need not go further but for to consider E.A.No.79 of 2013 dismissal is correct or not and got any legs to stand or not.

19. Leave about under Section 52 of the Transfer of Property Act lispendence alienee bound by the decree which difficulty also herein does not arise for claiming any equities by the alienee as it is a post decree alienator and that too subsequent to the registered sale deed, in the suit for specific performance in O.S.No.1675 of 2001 executed and cause registered by the Court from the J.Dr. failed to execute. Section 3 of the Transfer of Property Act also clearly says registration itself is a notice and if any bonafide enquiry made by the so called claimants in purchase of the property in 2007 nearly 4 years after execution of the registered sale deed as per the specific performance decree, they could know the lis. Thus, their claim has no legs to stand and practically the claim petition ought to have rejected by the lower Court before numbering or at least later for rejection can be made even before pronouncing final order/decree invoking Order VII Rule 11 (a) and (d) C.P.C. of bar by any law or want of cause of action. Leave about the same, Order XXI Rule 102 CPC is almost a kin and more powerful to Section 52 of the Transfer of Property Act from its close reading, needless to elaborate further for the purpose of the petition.

20. Coming to the very dismissal order of E.A.No.79 of 2013, the record clearly shows from the lower Courts order the deliberate suppression in the affidavit by the claimants about the conditional order passed when posted matter as a last chance, subject to costs of Rs.200/-. It was kept silent in the affidavit. It cannot be believed of they are ignorant of that fact having conscious of the proceeding and party in the proceedings and for several adjournments failed to attend that is reflecting from the order saying even after abstinence in person or through advocate to represent, despite the matter posted for enquiry including on costs, there is no reason assigned for that and affidavit petition is suppressing the factum of the matter posted conditionally subject to costs that was not complied. What more reason is required for the lower Court to dismiss the application filed under Order XXI Rule 106 CPC in EA No.177 of 2016-. An order need not cover several pages to say as reasoned order. Even a single and cogent reason is suffice to meet the legal requirement. In fact, it is an elaborate order in giving cogent reasons. Once such is the case, there is nothing to interfere apart from claim petition has no legs to stand at the threshold, leave about locus of specific performance suit in O.S.No.750 of 2011.

21. The Apex Court has also clarified the position in this regard in Usha Sinha Vs. Dina Ram & Others on the scope of Order XXI Rule 102 & Section 52 of the Transfer of Property Act, by referring to several expressions earlier of the Apex Court in Silverline Forum (P) Limited Vs. Rajiv Trust , Sarvinder Singh Vs. Dalip Singh & Bellamy Vs. Sabine , holding from Paras 18, 24 to 26 as follows:

Once the finding is in the affirmative, the Executing Court must hold that he had no right to resist or obstruct and such person cannot seek protection from the Executing Court. The Court stated;

shall be determined by the executing court, if such questions are "relevant to the adjudication of the application". A third party to the decree who offers resistance would thus fall within the ambit of Rule 101 if an adjudication is warranted as a consequence of the resistance or obstruction made by him to the execution of the decree. No doubt if the resistance was made by a transferee pendente lite of the judgment debtor, the scope of the adjudication would be shrunk to the limited question whether he is such transferee and on a finding in the affirmative regarding that point the execution court has to hold that he has no right to resist in view of the clear language contained in Rule 102. Exclusion of such a transferee from raising further contentions is based on the salutary principle adumbrated in Section 52 of the Transfer of Property Act." (emphasis supplied) [See also Sarvinder Singh supra)

25. We are in respectful agreement with the proposition of law laid down by this Court in Silverline Forum. In our opinion, the doctrine is based on the principle that the person purchasing property from the judgment debtor during the pendency of the suit has no independent right to property to resist, obstruct or object execution of a decree. Resistance at the instance of transferee of a judgment debtor during the pendency of the proceedings cannot be said to be resistance or obstruction by a person in his own right and, therefore, is not entitled to get his claim adjudicated.

26. For invoking Rule 102, it is enough for the decree holder to show that the person resisting the possession or offering obstruction is claiming his title to the property after the institution of the suit in which decree was passed and sought to be executed against the judgment debtor. If the said condition is fulfilled, the case falls within the mischief of Rule 102 and such applicant cannot place reliance either on Rule 98 or Rule 100 of Order XXI.

Ultimately there from that the transferee from a J.Dr. is presumed to be aware of the proceedings before a Court of law as recognized by the doctrine of lis pendence under Section 52 of the Transfer of Property Act and consequently Rule 102 of Order 21 CPC and if unfair equitable or undeserved protection is afforded to a transferee pendenti lite, a decree holder will never be able to realize the fruits of decree and thereby not entitled to any protection under law.

22. Accordingly, the Civil Revision Petition is dismissed. No costs.

23. Consequently, miscellaneous petitions pending, if any, shall stand dismissed.

__________________________ Dr. B. SIVA SANKARA RAO, J Date:21.11.2016

if no intimation of about a Party's death was given by his counsel, dealy is laible to be condoned for an application seeking to bring the LR of deceased on record- A citation

 IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH

M.S. Ramachandra Rao, J.
Sakeena Begum and others - Petitioners
Versus
Mir Hyder Ali Khan and another - Respondents
Civil Revision Petition No. 4555 of 2014
Decided On : 10-9-2015

Subject: Civil Procedure - Abatement and Substitution of Parties

condonation of delay - limitation period - legal representatives - notice of death - setting aside abatement - substitution of parties

Act Referred :
CIVIL PROCEDURE CODE : O.22 R.10(a), O.22 R.4(5)
LIMITATION ACT : S.5, Art.120

Civil Procedure Code – Civil Revision Petition is filed under Article 227 of the Constitution of India challenging the order in of the I Additional Senior Civil Judge Petitioners herein are defendants in the above suit 1st respondent/plaintiff filed the said suit for declaration of his right in the suit schedule property and for perpetual injunction restraining the 1st petitioner from interfering with his alleged possession and enjoyment of the suit schedule property. Pending suit, 1st petitioner died 1st respondent thereafter filed I.A. No. 3 of 2014 to condone the delay of 97 days in seeking to set aside the abatement and in filing the L.R. application alleging that the 1st respondent came to know about the death of the 1st petitioner only therefore he could not file the application to bring on record the legal representatives of the deceased-1st petitioner earlier; and that the counsel for the 1st petitioner did not give any notice to the 1st respondents counsel about the death of the 1st petitioner. He therefore sought of delay of 97 days after excluding the period of 90 days. Counter affidavit was filed by the legal representatives of the 1st petitioner denying the allegation of the 1st respondent that he was not aware of the death of the 1st petitioner contended that the suit has been coming up for steps and the 1st respondent through his advocate was actively participating in the proceedings. He therefore sought for dismissal of the said application –Held, Civil Revision Petition is filed under Article 227 of the Constitution of India challenging the order. Petitioners herein are defendants in the above suit.1st respondent/plaintiff filed the said suit for declaration of his right in the suit schedule property and for perpetual injunction restraining the 1st petitioner from interfering with his alleged possession and enjoyment of the suit schedule pending suit, 1st petitioner died 1st respondent thereafter filed I.A. No. 3 of 2014 to condone the delay of in seeking to set aside the abatement and in filing the L.R. application alleging that the 1st respondent came to know about the death of the 1st petitioner only therefore he could not file the application to bring on record the legal representatives of the deceased-1st petitioner earlier; and that the counsel for the 1st petitioner did not give any notice to the 1st respondents counsel about the death of the 1st petitioner. He therefore sought of delay of 97 days after excluding the period of 90 days. Counter affidavit was filed by the legal representatives of the 1st petitioner denying the allegation of the 1st respondent that he was not aware of the death of the 1st petitioner till 09.03.2014. He contended that the suit has been coming up for steps and the 1st respondent through his advocate was actively participating in the proceedings. He therefore sought for dismissal of the said application – Civil Revision Petition and it is accordingly dismissed

Cases Referred:

Ganeshprasad Barinarayana Lahoti (D) by L.Rs. v. Sanjeevprasad Jamnaprasad Chourasiya, , AIR 2004 SC 4158

Guru Uday Chandra, Visakhapatnam v. Koyya Prasad Reddy, Visakhapatnam, CRP. No. 5448 of 2012, , Decided on 12.8.2015

Mithailal Dalsangar Sinth v. Annabai Deuram Kini, (2003) 10 SCC 691, , 2003 (6) ALT 25.3 (DN SC)

T. Sarojamma alias Saroja Bai v. Mohammed Khaleelur Rahiman, (1998) 2 ALT 423, , 1998 (2) ALD 586

Advocates: Advocate Appeared :
For the Petitioners : Karri Murali Krishna
For the Respondent No. 1 : K. Rathanga Pani Reddy

ORDER :

M.S. Ramachandra Rao, J.

This Civil Revision Petition is filed under Article 227 of the Constitution of India challenging the order dated 17.10.2014 in I.A. No. 3 of 2014 in O.S. No. 87 of 2004 of the I Additional Senior Civil Judge (RTC), Nandyal.

2. Petitioners herein are defendants in the above suit. The 1st respondent/plaintiff filed the said suit for declaration of his right in the suit schedule property and for perpetual injunction restraining the 1st petitioner from interfering with his alleged possession and enjoyment of the suit schedule property.

3. Pending suit, 1st petitioner died on 27.08.2013. The 1st respondent thereafter filed I.A. No. 3 of 2014 to condone the delay of 97 days in seeking to set aside the abatement and in filing the L.R. application alleging that the 1st respondent came to know about the death of the 1st petitioner only on 09.03.2014; therefore he could not file the application to bring on record the legal representatives of the deceased-1st petitioner earlier; and that the counsel for the 1st petitioner did not give any notice to the 1st respondent's counsel about the death of the 1st petitioner. He therefore sought condonation of delay of 97 days after excluding the period of 90 days.

4. Counter affidavit was filed by the legal representatives of the 1st petitioner denying the allegation of the 1st respondent that he was not aware of the death of the 1st petitioner till 09.03.2014. He contended that the suit has been coming up for steps and the 1st respondent through his advocate was actively participating in the proceedings. He therefore sought for dismissal of the said application.

5. By order dated 17.10.2014, the Court below allowed the said application and impleaded petitioners 2 to 8 and the 2nd defendant as legal representatives of the deceased-1st petitioner. It held that as per Order 22, Rule 10A of CPC, notice has to be given by the counsel for the 1st petitioner to the counsel for the 1st respondent or the Court shall inform about the same to the counsel for the 1st respondent. It further observed that the limitation for filing the petition to set aside the abatement starts when the 1st respondent/plaintiff came to know about the death of the 1st petitioner in view of Order 22, Rule 4 (5) of CPC and therefore, the delay is liable to be condoned.

6. Challenging the same this Revision is filed.

7. Counsel for the petitioners contended that the Court below had erred in allowing the application seeking condonation of delay in seeking to set aside the abatement and in filing petition to implead legal representatives; and that the 1st respondent was aware of the death of the 1st petitioner; since a memo to that effect had been served on the counsel for the 1st respondent by the counsel for the 1st petitioner.

8. When the 1st respondent had specifically asserted that the counsel for the 1st petitioner had not given any notice to his counsel about the death of the 1st petitioner, in the counter affidavit filed on behalf of the petitioners there is no denial of the said allegation. It is also not contended by them in the counter that any memo was served by the counsel for the 1st petitioner on the counsel for the 1st respondent indicating about the date of death of the 1st petitioner and furnishing details of his legal representatives.

9. Merely because counsel for the 1st respondent is said to be actively participating in the suit proceedings, it cannot be presumed that he had knowledge of the death of the 1st petitioner as well as the details of the legal representatives of the 1st petitioner. When the counsel for the 1st respondent had no knowledge about the date of death of the 1st petitioner, to expect the 1st respondent to file application, to bring on record the legal representatives of the deceased-1st petitioner, within the period prescribed by law, would be asking him to do the impossible.

10. Order 22, Rule 10 (A) CPC imposes an obligation on the counsel for the 1st petitioner to communicate to the Court about the death of the 1st petitioner.

11. Admittedly, there is no evidence that the counsel for the 1st petitioner had discharged the said obligation. In this view of the matter, the petitioners cannot be allowed to take advantage of their own wrong and oppose the condonation of delay in filing the petition to set aside the abatement and to bring on record the legal representatives of the deceased-1st petitioner.

12. Counsel for the petitioners relied upon the judgment in T. Sarojamma alias Saroja Bai v. Mohammed Khaleelur Rahiman & Ors., (1998) 2 ALT 423, 1998 (2) ALD 586 in support of the plea that the starting point of limitation for filing of application to bring the legal representatives of the deceased party on record is the date of death of the party to the proceedings and if no application is filed within the period of limitation, the suit or appeal abates. It was held therein that if application to bring on record the legal representatives of the deceased on record within 60 days from the date of abatement is not filed, and if there is delay in making such application, delay should be properly explained in the affidavit filed in support of petition under Section 5 of the Limitation Act, 1963. It is also observed therein that the scope of Order 22, Rule 10 (A) CPC is limited in nature and it should not be construed as a starting point for running the period of limitation.

13. In this regard reference may be made to sub-rule 5 of Rule 4 Order 22 CPC. It states that :

"O.XXII Rr.4 (5) CPC-Where

a. The plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the Limitation Act, 1963 (36 of 1963) and the suit has, in consequence, abated, and

b. The plaintiff applies after the expiry of the period specified therefore in the Limitation Act, 1963 (36 of 1963), for setting aside the abatement and also for the admission of that application under section 5 of the Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within the period specified in the said Act,

The Court shall, in considering the application under the said section 5 have due regard to the fact of such ignorance, if proved."

14. From the above provision, it is clear that if the plaintiff was ignorant of the death of the 1st defendant and he applies after expiry of the period specified in the Limitation Act, 1963 for setting aside the abatement and also for bringing on record the legal representatives of the deceased-defendant and sought condonation of delay on the ground of his ignorance, the Court should have due regard to such ignorance, if proved. Therefore Order 22, Rule 4 (5) CPC read with Order 22, Rule 10 (a) CPC clearly does not intend to penalise a plaintiff who is not aware of the death of the defendant and who had not filed the application to bring on record the legal representatives of the deceased on record within the period of 90 days specified under Article 120 of the Limitation Act, 1963.

15. Unfortunately in T. Sarojamma alias Saroja Bai's case (1 supra), the provision of sub-rule (5) of Order 22, Rule 4 CPC has not been noticed. That apart, in Mithailal Dalsangar Sinth v. Annabai Deuram Kini, (2003) 10 SCC 691, 2003 (6) ALT 25.3 (DN SC) the Supreme Court held that an application with a simple prayer to bring the legal representatives on record, without specifically praying for setting aside the abatement as regards one of the parties, can be construed as a prayer for setting aside the abatement. It held that a prayer for bringing the legal representatives of deceased party on record, if allowed, would have the effect of setting aside the abatement and the relief of setting aside abatement, though not asked for in so many words, is in effect being actually asked for and is necessarily implied.

16. Similar view has been expressed in Ganeshprasad Barinarayana Lahoti (D) by L.Rs. v. Sanjeevprasad Jamnaprasad Chourasiya and another, AIR 2004 SC 4158. The Court reiterated that prayer for substitution of legal representatives of a deceased party ought to be allowed even if there was no application to set aside abatement caused by the death of the party or to condone the delay in seeking such abatement.

17. Therefore, the view expressed in T. Sarojamma alias Saroja Bai's case (1 supra) that if an application to set aside abatement or to condone the delay in seeking to set aside abatement is not filed, an application to bring on record the legal representatives of deceased party filed beyond time cannot be maintained, is not correct.

18. Similar view has been taken by me in an order dt.12.08.2015 in Guru Uday Chandra, Visakhapatnam & 3 Others v. Koyya Prasad Reddy, Visakhapatnam & 8 Others (CRP No. 5448 of 2012). I have held that Order 22, Rule 10 (A) CPC has been inserted specifically to mitigate the hardship arising from the fact that the party to a suit or an appeal may not come to know about the death of the other party during the pendency of the suit or appeal and a duty is cast upon the advocate appearing for the party who comes to know about the death of the party to communicate the Court about the same and that all procedure is a hand-maid of justice and a hyper technical approach in a situation where steps are taken by a party as soon as they came to know about the death of the other party, would defeat the ends of justice.

19. While it may be true that suit would abate if the legal representatives are not brought on record within the period of limitation of 90 days from the date of death of the 1st petitioner (as per Article 120), but since no intimation of date of death of 1st petitioner was given by his counsel to counsel for 1st respondent, even if calculation of period of delay in seeking to set aside abatement by 1st respondent is not accurate, the said period of delay is liable to be condoned.

20. I therefore do not find any merit in this Civil Revision Petition and it is accordingly dismissed with costs of Rs. 1,000/- (Rupees One thousand) to be paid by the petitioners to the 1st respondent within a period of four (04) weeks from the date of receipt of a copy of this order.

21. Consequently, miscellaneous petitions pending, if any, shall stand dismissed.i 

In DVC cases, Court shall not insist for appearence of party on each and evry day as proceedings therein are more civil in nature- Hon'ble High Court's directions

 

HON’BLE Dr. JUSTICE CHILLAKUR SUMALATHA CRIMINAL PETITION No.5840 of 2022

 ORDER : 

(1)The Courts of Judicial Magistrate of First Class which are dealing with the cases filed seeking various kinds of reliefs as laid down under Sections 18 to 22 of the Protection of Women from Domestic Violence Act, 2005 should takenote of the fact that the proceedings therein are more civil in nature

 (2)When the aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person presents an application seeking one or more reliefs that are enshrined under Sections 18 to 22 of the Protection of Women from Domestic Violence Act, 2005, upon service of notice as required under Section 13 of the said Act and upon making appearance by the opposite party i.e., respondents therein either in person or through their counsel, the Court shall not insist for their personal appearance for each and every adjournment.

 (3)The Courts dealing with the cases under the Protection of Women from Domestic Violence Act, 2005 shall not even insist for filing an application under Section 317 Cr.P.C. 

(4)The persons against whom the applications are filed seeking relief in domestic violence cases i.e., the respondents, however, shall appear in person if a specific direction is given for their personal appearance by the Court during the course of proceedings. 

(5)The points enumerated above does not however apply during the course of proceedings that are conducted under Section 31 of the Protection of Women from Domestic Violence Act, 2005.

 (6) Last but most important is that the Courts of Judicial Magistrate of First Class which are empowered to deal with the matters under the Protection of Women from Domestic Violence Act, 2005 shall make all endeavour to dispose of the applications filed for grant of various reliefs that are provided under Sections 18 to 22 of the Protection of Women from Domestic Violence Act, 2005 within a period of sixty (60) days from the date of first hearing, as required under Section 12(5) of the said Act.