BANDARU DEMUDU Vs. YEDLA ATCHAYYAMMA

JUDGEMENT

(1.) This revision is filed under Art. 227 of the Constitution of India against the order dated 21.2.1997 on the file of the Subordinate Judge, Chodavaram in E.A.No.231 of 1995 in E.P.No.20 of 1981 in O.S.No.129 of 1954.

(2.) The revision petitioner is the Court auction purchaser. He purchased items 1,3 and 7 of decree schedule property in Court auction. He represents that he deposited the sale amount and also deposited the necessary Non Judicial stamps in the execution Court. The sale is not yet confirmed by the Court. On 27.9.1991 the decree holder was not present and his advocate reported no instructions in execution Court. Therefore, the executing Court dismissed the E.P.No.20 of 1981 pending on its file on the same day. Thereafter, the revision petitioner filed a petition under Order 21 Rule 106 of the Code of Civil Procedure (hereinafter referred to as 'C.P.C.') to restore the E.P. dismissed for default. There was a delay of about 1274 days in filing the restoration petition. To condone the delay of 1274 days the revision petitioner filed E.A.No.231 of 1995 under Sec. 5 of the Limitation Act.

(3.) The revision petitioner pleaded that when the E.P. was posted for confirmation of sale, the judgment debtors filed a revision petition in the High Court and obtained interim stay of E.P. proceedings and thereafter, the C.R.P. was dismissed by the High Court. He claims that he was not aware of the dismissal of the C.R.P. filed in the High Court and as he had no information about the adjournments in execution petition, he could not appear in the Court within the time and conduct the proceedings and therefore there is a delay in filing the restoration petition. Fifth judgment debtor alone contested the said petition. He pleaded that Sec. 5 of the Limitation Act has no application to the proceedings under Order 21 C.P.C. He also pleaded that the delay is not properly explained by the auction purchaser. The executing Court found that Sec. 5 of the Limitation Act applies to the proceedings under Order 21 Rule 106 C.P.C. and therefore held that the petition is maintainable. However, the Court below felt that the delay was not properly explained. Accordingly it dismissed the petition filed by the petitioner herein.