HARDAYAL Vs. MUNI LAL

JUDGEMENT

(1.) THIS revision petition has been filed against the judgment of the Additional District Judge, Gurgaon, dated November 15, 1979.

(2.) BRIEFLY , the facts are that an execution application was filed by the decree -holder for taking possession of the property by demarcation, in the executing Court. The judgment -debtor raised objections, against the execution of the decree. The objections were dismissed by the executing court. The judgment -debtor went up in Appeal before the senior Subordinate Judge, Gurgaon. The appeal was transferred to the District Judge under the orders of the High Court. The District Judge transferred the appeal for decision to the Additional District Judge. The Additional District Judge remanded the case to the executing court vide judgment dated Oct 27, 1977. It again dismissed the objections of the J.D. on December 12, 1978 He preferred an appeal on December 18, 1978, before the District Judge, Gurgaon. An objection was taken before him on October 24, 1979, that the appeal against the judgment of the executing Court was maintainable before the Senior Subordinate Judge and not before the District Judge. It was further stated that thus the Additional District Judge has no jurisdiction to hear it. The learned Additional District Judge agreed with the objection and returned the memorandum of appeal to the judgment -debtor for presenting the appeal to the proper Court.

(3.) THE only question that arises for determination in this case is as to whether there were sufficient grounds for condonation of delay in filing the appeal. The counsel for the petitioner, who filed the appeal before the District Judge against the judgment of the executing Court has filed an affidavit in this Court that he filed the appeal to the District Judge under a bona fide impression that that Court had the jurisdiction to decide it. He further states that that impression was created as the appeal had earlier been reminded to the executing Court by the Additional District Judge, Gurgaon. In the application under section 5 of the Limitation Act, judgment debtor had stated that he had filed the appeal on the advice of his Lawyer. It is now well settled that if the appeal is filed under a bona fide mistake on the advice of a Lawyer in a Court without jurisdiction, and later it has been filed in the Court of competent jurisdiction, the litigant should not be allowed to suffer for the fault of the Lawyer.