Smt. Ningamma Gowda Since Deceased by Legal Representatives Respondents 2 to 7 and Others vs Smt. Hutckamma Since Deceased by L.Rs. Respondents 2 to 7 and Others

Ajit J Gunjal

The plaintiffs are before this Court questioning the judgment and decree passed by the Appellate Court on 27.8.1993. The said appeal is accompanied by various applications including one for condonation of delay in filing of the appeal to an extent of 6164 days, which would be 17 years. It is also accompanied by various other applications including to condone the delay in filing of the applications for setting aside the abatement and to bring the legal representatives of deceased appellants as well as respondents on record.

The plaintiff files a suit for redemption of mortgage. The learned Trial Judge dismissed the suit. As against which, the original plaintiff was before the Appellate Court. The Appellate Court pursuant to a judgment dated 27.8.93 allowed the appeal in part. Thus decreed the suit in the following terms:

In the result, the appeal is partly allowed.

The plaintiff is hereby declared that he is the owner of the suit schedule property and he has right to redeem the mortgage transactions at Ex.D1.

If the plaintiff has deposited the mortgage amount in the Court then the defendant No. 1 to 7 can entitle to get that amount by filing a proper application. If he has not deposited the amount, he is directed to deposit the amount within three months.

The prayer of the plaintiff seeking the recovery of possession by redemption or partition and separate possession by metes and bounds is hereby dismissed.

It is to be noticed that the prayer of the original plaintiff seeking recovery of possession by redemption or partition and separate possession by metes and bounds was dismissed.

Apparently, the original plaintiff did not question that part of the judgment denying partition or possession. The defendant in the suit filed an appeal in RSA No. 1278/1995. This Court declined to entertain the appeal on the ground that the possession has already been delivered. Thereafter, since possession was not delivered the plaintiff sued out execution for recovery of possession. A contention was taken by the defendants indicating that the judgment and decree does not indicate that possession is to be delivered. Thus execution proceedings were terminated. In this piquant situation the legal representatives of original plaintiff are before this Court questioning the judgment and decree passed by the learned Appellate Judge after lapse of 17 years.

I have heard Mr. Kashinath, learned counsel appearing for the plaintiffs-appellants at great length. He would press into service a ruling of this Court in a Land Reforms matter, wherein a delay of 17 years is condoned. He further submits that the parties are litigating from past 50 years and an end is required to be given by entertaining this appeal.

6 Before entertaining the appeal, the legal representatives of original plaintiff are required to explain as to why there is delay of 17 years in filing the appeal.

Undoubtedly, sufficient cause u/s 5 of the Limitation Act is required to be construed liberally. But however, not so liberal as to make it redundant.

In the case on hand it is to be noticed that the original plaintiff was aware that recovery of possession by redemption or by partition was denied. Hence, if really the original plaintiff was aggrieved by that portion of the judgment and decree he ought to have filed an appeal in the first instance. But however, that has not been done. I am of the view that whatever explanation sought to be averred by the legal representatives of original plaintiff to condone this inordinate delay the same cannot be considered as sufficient cause.

It is no doubt true that in a writ proceeding under the Land Reforms Act, this Court entertained a writ petition after a lapse 17 years. But however, a perusal of the order passed by this Court does not indicate that any ratio is laid down as to why the delay is required to be condoned. The condonation of delay in the writ proceedings are required to be confined only to those proceedings and cannot be a precedent. It is also to be noticed that the plaintiff has woke up after 17 years. Having said so, I am of the view that the question of entertaining this appeal by issuing notice to the respondents does not arise. All applications stands rejected consequently the appeal also stands rejected. If the legal representatives of original plaintiff have any other remedy to redress their grievance they shall do so in accordance with law. Appeal stands dismissed.