ARIF ABDUL GHANI Vs. SHAIK CHAND

JUDGEMENT

(1.) The short question that arises in this case is whether the period of Limitation prescribed by Order 22 Rule 3 to bring on record the L.Rs of a claimant in an application filed under Order 21 Rules 97,98 and 101 CPC read with Sec.47 of CPC is applicable or not? The question arises on the following facts,

(2.) The petitioner-decreeholder, in execution of a decree obtained in the suitfor specific performance and recovery of possession, got the sale deed executed through the Court and also obtained possession of the prqperty on 9-12-1988. At that stage, the father of the respondents filed a claim petition E.A.34/89 under Order 21 Rules 97,98 and 101 read with Sec.47 of CPC. Pending the same it appeared he passed away on 3-6-1990 but no steps had been taken by the L.Rs/respondents to be brought on record, hence E.A. had been dismissed. After a considerable delay, they thought of corning on record. They had chosen to file E.A. 119/93 under Section 5 of the Limitation Act, to condone the inordinate delay of 959 days in filing the application to bring them on record. The petition was promptly dismissed on 13-3-96, the Court having found that there was no sufficient cause for condoning the delay. Respondents having chosen not to question the order, the order had become final. Surprisingly now the present E.A.No.95/96 was filed by respondents to bring them on record under Order 22 Rule 3 CPC without seeking to condone delay and it was allowed by an order dt. 12-8-1996. This order is challenged in this Civil Revision Petition. The point that was raised by the respondents before the Court below was that it was not necessary under law to file any application to condone the delay in view of Order 22 Rule 12 CPC as it specifies that the bar under Order 22 Rule 3 to substitute the L.Rs within the period of Limitation was not applicable for execution petitions. Accepting the above stand the Court had chosen to allow the application,

(3.) Forceful arguments were advanced before me by both the Counsel. It is contended by the learned Counsel for the petitioner that the application filed by the deceased/claimant under Order 21 Rules 97,98 and 101 of CPC being in the nature of a suit and not a proceeding in execution taken by the decreeholder, the limitation prescribed under Order 22 Rule 3 is squarely applicable and the application should have been filed within the period of limitation of 90 days. It is therefore argued that the Court below has committed a serious error in holding that Order 22 Rule 3 has no application to the application filed by the respondents. Learned Counsel for respondents however, contended that as the present application arises during the execution of the decree, by reason of Order 22 Rule 12 the period of limitation prescribed under Order 22 Rule 3 had no application and hence the application was rightly allowed by the Court below.