GNANADURAI Vs. SUSEELAMMAL

JUDGEMENT

(1.) This petition was filed to condone the delay of 684 days in filing the revision. The auction purchaser - Decree holder is the petitioner herein. The respondent is the Judgment-Debtor. The Judgment-debtor filed an application under Section 47 of Civil Procedure Code questioning the execution, discharge or satisfaction of the decree obtained by the decree-holder. The above said application was allowed. Thereafter the auction purchaser, who is the petitioner herein filed an appeal C.M.A. No. 14 of 1988 against the order passed in Application filed under Section 47 of the Civil Procedure Code. The said application was ultimately dismissed by the appellate Court stating that only a revision will lie against the order passed in application filed under Section 47 of Civil Procedure Code and directed the auction-purchaser to approach the proper Court for filing the revision. It is thereafter the present revision was filed.

(2.) The learned counsel for the petitioner submitted that since the appeal was prosecuted bona fide by the appellant, the time during which the appeal was pending should be excluded and condoned. On the other hand, the learned counsel for the respondent submitted that there is no bona fide on the part of the petitioner herein in approaching the appellate Court by filing an appeal against the order passed in application filed under Section 47 of the Civil Procedure Code while a revision alone will lie before the High Court. The learned counsel further pointed out that in spite of the fact that the petitioner herein had legal advice, if he approached a wrong forum, he will not be entitled to say that either under misapprehension or due to bona fide prosecution the delay occurred should be condoned. It was therefore pleaded that the delay is deliberate and hence it should not be condoned.

(3.) I have heard the rival submissions. The fact remains that the petitioner, who is the auction purchaser-decree holder contested the application filed under Section 47 of the Civil Procedure Code by the Judgment-debtor, questioning the execution satisfaction or discharge of the decree passed against him. The application filed under Section 47 of Civil Procedure Code was allowed. Thereafter the petitioner herein filed an appeal C.M.A. No. 14 of 1988 on the file of the Additional Sub Court, Vellore under Order 43, Rule 1(j) of Civil Procedure Code. Even the time of filing the appeal, the office raised an objection towards the maintainability of this appeal stating as to how an appeal will lie against the order passed in application filed under Section 7 of the Civil Procedure Code. But it was contended that inasmuch as they attempted to question the sale under Order 21, Rule 92 of Civil Procedure Code the appeal will lie. Accordingly the appeal was pending on the file of the first appellate Court and it was disposed of on 21-3-1990. In the order, the appellate Court said that only a revision will lie against the order passed in an application filed under Section 47 of Civil Procedure Code and appeal will not lie. Accordingly the papers were returned on 29-3-1990 directing the petitioner herein to file the revision before the proper court. Therefore, according to the petitioner herein, since he was bona fide in prosecuting the appeal on a wrong impression that an appeal alone will lie against the order passed under application filed under Section 47 of Civil Procedure Code, the delay of 684 days in filing the revision should be condoned.