Arjun Pandit and Others vs Gunadhar Pandit

Binod Kumar Roy, J.—This Civil Revision application has filed against an order dated 26.6.1982, passed in an Execution proceeding u/s 47 of the Code of Civil Procedure.

Earlier a Miscellaneous appeal bearing No.5/83 before the District Judge, Santhal Pargana, Dumka against the aforementioned order was filed which was also entertained and held maintainable in view of a Division Bench Judgment of this Court reported in 1979 BBCJ 571 and finally allowed by the 3rd Additional District Judge Dumka vide his judgment dated 5.3.1986 (Annexure-1 to the civil revision application). The said judgment was challenged in Civil Revision No.715 of 1986 which was finally allowed by me on 16.12.1988 in view of a Full Bench Judgment of this Court reported in 1986 BBCJ 600 over ruling the Division Bench Judgment reported in 1979 BBCJ 571 holding that no appeal lies rather a revision lies against an order passed u/s 47 of the Code of Civil Procedure. Thereafter the petitioners obtained certified copy of the impugned order on 23.12.1988 and filed this civil revision application along with a limitation petition on 19th January, 1989. A show cause was filed by the opposite parties to the limitation petition and, thereafter the petitioners filed the supplementary affidavit to which also a reply was filed by the opposite party on 3.4.1989.

From perusal of the limitation petition, show cause of the opposite party, the supplementary affidavit and reply of the opposite party to the supplementary affidavit following facts emerges:-

(i) The earlier civil revision application filed by the opposite party was allowed by me on 16.12.1988 on a technical ground.

(ii) The petitioners were bona fide prosecuting their appeal before the District Judge, which was also reported to be maintainable by the Seristedar in view of the Division Bench Judgment of this Court reported in 1979 BBC 571.

(iii) The petitioners were informed of my decision by the learned advocate who advised them to file a revision application against the impugned over by asking them to obtain a certified copy of the same on which an application for supplying the certified copy was made on 21.12.1988 which was made overon23.12.1988.

(iv) The wife of petitioner No. 1 because unwell and was put under the treatment of one Dr. Ashok Kumar from 18.12.1988 and thus the petitioner No. 1 had sent his son Onkar Pandit alongwith the certified copy of the impugned order to hand over the same to Sri Arvind Kumar Tiwary, the learned advocate who came to Patna in the night on 3rd January, 1989 and tried to met Sri Tiwary had gone to attend his ailing father at Munger and thus not available at Patna and, thereafter Onkar Pandit returned back to Godda and informed the petitioner No. 1.

(v) The petitioner No. 1 thereafter sent a special messenger to Munger requesting Sri Tiwary to come back to Patna and to file this revision application and thereafter the petitioner No. 1 sent again his aforementioned son to Patna, who met Sri Tiwary on 15th January, 1989 and thereafter the civil revision application was drafted and filed.

(vi) The delay in not filing the civil revision application in time was not due to any deliberate of mala fide attitude or willful negligence.

I am satisfied and thus hold that there has been sufficient cause is not filing this revision application within the statutory time and accordingly I allow the petition u/s 5 of the Limitation Act and condone the delay and proceed to dispose of the revision application on merits also.

It is an admitted fact that Most, Pabia who was the decree-holder, had die don 16.6.1981 during the pendency of the Second appeal No.611 of 1977 without leaving any issue of her own. A controversy arose as to who is her legal representatives. The petitioners claim themselves to be her legal representatives whereas the opposite party claims himself to be legal representative on the strength of a deed of adoption dated 2.8.1974 said to have been executed by Most Pabia. The claim of adoption was also challenged by the petitioners who were judgment debtors, by filing an objection. By the impugned order, without holding any enquiry by instituting any miscellaneous case u/s 47 of the Code of Civil Procedure, the executing Court had proceeded to negative the claim of the petitioners.

I am of the view that the course adopted by the executing Court was not legal and is vitiated on account of it having acted illegally in refusing to decide the question without any evidence as to which of the parties are in fact legal representatives and without instituting any miscellaneous case.

Mr. Ojha, learned counsel for the opposite party with usual fairness also ultimately disagreed with the course adopted by the executing Court though initially he had tired to justify the order.

In the result the impugned order is set aside and the case is remitted back and the Executing Court is directed to institute a Miscellaneous case on the objection of the petitioner, frame an issue as to who in fact is the legal representative of the deceased decree-holder and decide the same after taking evidence and hearing both sides. The Civil Revision application is allowed but in the facts without any cost. Since the execution case in question arises out of a suit instituted in 1964,1 direct the executing Court to decide the same expeditiously by taking up its day hearing Strictly following the provisions of order 17 of the CPC which does hot permit adjournment but for special reasons.