Mohammad Shafeeq vs Mirza Mohammad Husain and Others

R.C. Lahoti J.-Leave granted in both the special leave petitions.

The appellant preferred the objections under Order 21 Rule 97 CPC offering resistance to execution of decree, wherein he was not a party. Vide order dated 30-5-2000, his application was rejected by the executing court. He preferred an appeal which was registered as Regular Civil Appeal No. 122 of 2000 in the Court of District Judge, Lucknow. On 10-8-2000, the appeal was allowed. The order of the executing court was set aside and the case was remanded back to the executing court with a direction to decide the objections of the appellant afresh in accordance with law. This order was put in issue by the decree-holder by filing a civil writ petition before the High Court, which was allowed. The High Court quashed the order of the District Judge dated 10-8-2000, forming an opinion that the appellant should have preferred a revision and not an appeal and therefore, the order of the District Judge, passed in exercise of appellate jurisdiction, was void and a nullity. Submitting to the order of the High Court the appellant now preferred a civil revision against the order of the executing court dated 30-5-2000, seeking condonation of delay in filing the revision. The learned Additional District Judge, who heard the revision, condoned the delay in filing the revision and set it down for hearing on merits. This order of the revisional court condoning the delay was, once again, put in issue by the decree-holder by filing a writ petition in the High Court. The High Court has allowed the writ petition and set aside the order of the Additional District Judge condoning the delay in filing the revision. The principal reason, which has persuaded the High Court in passing the order, is that the appellant had prayed for conversion of his appeal before the District Judge into revision and that prayer, though made before the High Court, was refused.

In our opinion, the High Court has taken too technical a view of the error committed by the appellant in pursuing the remedy available to him under the law. The appellant had been prosecuting his remedy diligently and there is nothing to doubt his bona fides. These aspects were taken into consideration by the learned Additional District Judge while condoning the delay in filing the revision. In our opinion, the High Court ought not to have interfered with the order of the Additional District Judge, condoning the delay in filing the revision, being an order passed in exercise of discretion vested in the learned Additional District Judge and for that reason, was not open to interference by the High Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution.

The appeals are allowed. The impugned order of the High Court dated 15-5-2001 is set aside. The civil revision, filed by the appellant before the Additional District Judge, shall stand restored to its file and set down for hearing on merits and decision in accordance with law.

However, in view of the delay that has already taken place, learned Additional District Judge may proceed to hear and decide the revision expeditiously.