LAWS(ORI)-1999-4-3

NANAK CHAND KHANDELWALLA Vs. RAMKISHAN KHANDELWALLA

Decided On April 07, 1999
Nanak Chand Khandelwalla Appellant
V/S
Ramkishan Khandelwalla Respondents

JUDGEMENT

(1.) This Civil Revision has been filed by the appellant in Title Appeal No. 17 of 1996 as against the order dated 22.2.1997 passed by the District Judge, Mayurbhanj. That appeal having been filed 3 years 9 days after the final decree, learned District Judge by the impugned order rejected the application filed Under Section 5 read with Section 14 of the Limitation Act. Hence this revision.

(2.) OPP . party No. 1 filed a suit for partition vide Title Suit No. 8/75 of 1982/80 which was decreed ex parte as against the present petitioner. He preferred appeal and ultimately Title Appeal No. 375/83, was disposed of by a Division Bench of this Court on 17.7.1990 confirming that ex parte decree. Thereafter, application for final decree was filed on 7.12.1992, order was passed and on 8.2.1993 the final decree was drawn, signed and sealed. Relevant portions of the decree is quoted as hereunder : 'The suit coming on 7th day of December, 1992 for final disposal before Sri B. N. Mishra, L.L.B., Subordinate Judge, Baripada in the presence of Sri H. K. Dash, Sri S. K. Senapati, Advocates for the plaintiff and Sri B. K. Barik and Sri S. K. Sahu, Advocates for Defendant No. 1 Sri A. K. Hotta, Sri S. N. Panda, Advocates for the defendant No. 2 and Sri K. Singh and Sri P. K. Basa, Advocates for the defendant Nos. 3 and 4, this Court doth order that the report prepared and signed by the Civil Court Commissioner appointed. in pursuance of the order contained in the preliminary decree in this suit dated 11th day of March, 1983 do stand confirmed. The report and badar and trace prepared and signed by the Civil Court Commissioner is accepted and the same do part of the final decree and is decreed that the property specified in the Schedule hereunto annexed be allotted according to the said report.' After the aforesaid decree, opp. party No. 1 instituted execution proceeding. Petitioner filed objections under Order 21, Rule 22, Civil Procedure Code and Section 47, C.P.C. vide M.J.C. No. 39 of 1995 challenging executability of the decree. That application was also rejected. Thereafter petitioner filed the aforesaid Title Appeal No. 17/96 challenging the final decree on various grounds including the ground of inequitability in allotment of share and non -allotment of a house/room in his favour out of the suit property. Since the appeal was filed beyond the prescribed period of limitation, as already indicated above, petitioner filed an application Under Section 5 read with Section 14 of the Limitation Act with the prayer to condone the delay and the same was rejected on merit. These are admitted facts existing in record and not controverted by the counsel appearing for the parties.

(3.) LEARNED counsel for the petitioner Mr. J.R. Dash contends that when petitioner was advised to contest in execution proceeding instead of filing of an appeal against the final decree, he being a rustic villager, could not file the appeal in time and this aspect was not all properly considered by learned District Judge in view of the provision in Section 14 of the Limitation Act. He argues that when substantial right of the petitioner has been effected by depriving him of a legitimate share and that aspect he challenges in the appeal, learned District Judge should have taken a liberal view in the matter relating to condonation of delay and exercised the discretion in favour of the petitioner and allowed the application Under Section 5 read with Section 14 of the Limitation Act. He further submits that this Court exercising its discretion should set aside the impugned order and condoned the delay and direct the appellate Court to admit and hear the appeal, may be within a specified period.