CENTRAL INDUSTRIAL SECURITY FORCE Vs. BEDI RAM

JUDGEMENT

(1.) HEARD Sri S.F.A. Naqvi, learned Counsel for the appellant. This second appeal is arising out of Original Suit No. 352 of 1994, filed by the plaintiff-respondent for injunction restraining the defendant-respondents from closing the Chak Road situate at Khasra No. 114. It was alleged in the plaint that he is a landless person and Khasra No. 613 measuring about 2 Bighas, Patta was granted in his favour and from the date of grant of Patta, he is in possession of the said property. This property has never been acquired by the respondent, therefore, a suit for injunction for the said purpose was filed. The Trial Court after hearing all the parties- vide its judgment and decree dated 13.3.1995 was pleased to decree the suit restraining the defendant-appellant from closing the Chak Road situate at Khasra No. 114. The appeal filed by the defendant-appellant too was dismissed vide its judgment and order dated 24.7.2002. The appellant being a Central Government Department, though the appeal should have been filed within time but admittedly no appeal was filed within time and it was filed about a lapse of 6 years, that too on 11.5.2009 against the judgment and order dated 24.7.2002.

(2.) NOTICES were issued on the application under section 5 of the Limitation Act and counter and rejoinder affidavits have been exchanged. One of the objections taken by the learned Counsel for the respondents Sri R.S. Dwivedi is that Bedi Ram died after the decision taken by the Appellate Court i.e. 24.7.2002 and the appeal has been filed in 2009 against dead persons, therefore, notices have also been issued to the dead persons. It has further been submitted that no application as provided in the Code of Civil Procedure to file appeal against the heirs of the deceased- respondent was ever filed.

(3.) FROM the perusal of the said averments which has been quoted in the present order, it is clear that no explanation has been given that what were the circumstances and what were the reasons for not filing the appeal within time. It is settled in law that day to day explanation has to be submitted in the application under section 5 of the Limitation Act. FROM the perusal of the affidavit it appears that in spite of the appellate order in 2002, they kept waiting till the execution filed by the decree-holder and before the Executing Court, they raised an objection regarding the jurisdiction of the Court. It has also been brought to the notice of the Court that in the execution proceeding objections filed by the defendant-appellant under Order XLVII CPC has already been dismissed vide its order dated 21.10.2010. Now the date has been fixed only for the purpose of taking possession. Once the objection has already been dismissed in the execution proceeding, in my opinion, nothing remains. Admittedly this order has not been challenged by the defendant-appellant in any Court of law.