Thankammal vs Suseela Ponmalar and Others

P.R. Shivakumar, J.—This Civil Revision Petition has been filed u/s 115 of the CPC challenging the order of the learned District Judge, Kanyakumari at Nagercoil (Appellate Judge) dated 26.03.2010 made in I.A. No. 16 of 2009 in C.M.A.SR. No. 178 of 2009. The revision petitioner Thangammal is the mother of the 4th respondent Bennet. The first respondent Suseela Ponmalar is the wife of the 4th respondent. The second and third respondents, namely minor Pemila Berin and minor Benasir Pemila are the daughters of the first and fourth respondents. It is an admitted fact that the first respondent Suseela Ponmalar and her husband (4th respondent) are not living together and the respondents 1 to 3 are living separately. As the fourth respondent did not make any provision for the maintenance of his wife and children (the respondents 1 to 3) they filed a suit in (O.S. No. 223 of 2002 on the file of the learned Principal Subordinate Judge, Nagercoil for recovery of a sum of Rs. 1,08,000/- as past maintenance and future maintenance at the rate of Rs. 3,000/- per month and also for creating a charge over the suit properties for the payment of maintenance amount. After trial, the suit was decreed as prayed for by a judgment and decree dated 20.01.2005. As the decree amount was not paid, the decree holders, namely respondents 1 to 3 herein, levied execution by filing E.P. No. 48 of 2005 on the file of the trial Court, namely the Principal Sub-ordinate Judge, Padmanabhapuram for the sale of the charged properties to release the decree amount.

After the filing of the execution petition, the revision petitioner herein filed E.A. No. 523 of 2005 in the above said execution petition praying for an order to raise the attachment over the properties described in the schedule to the petition on the strength of the affidavit filed in support of the Execution Application, claiming that those properties belonged to the revision petitioner and they were wrongly attached by the trial Court in I.A. No. 99 of 2001 in O.S. No. 223 of 2002. The said execution application was resisted by the respondents 1 to 3 herein contending that the revision petitioner, without any right or title over the property, had simply filed the said application only in order to prevent the decree holders (respondents 1 to 3) herein from realizing the fruits of the decree and that, in fact the judgment debtor (the fourth respondent) had set up his mother (the revision petitioner) to file such an application with a view to further harass respondents 1 to 3 who were made to suffer because of his failure to maintain them.

The learned Principal Sub-ordinate Judge, conducted an enquiry and at the conclusion of enquiry, dismissed E.A. No. 523 of 2005 by an order dated 13.02.2007. The revision petitioner did not file any appeal in time. On the other hand, she chose to prefer a revision, that too belatedly in CRP (NPD)(MD) No. 700 of 2008 under article 227 of the Constitution of India. When the maintainability of the revision was questioned, the counsel for the revision petitioner wanted the said revision CRP (NPD)(MD) No. 700 of 2008 to be dismissed granting liberty to the revision petitioner to file an appeal along with an application to condone the delay in preferring the appeal. Such an order dismissing the earlier Civil Revision Petition was passed on 12.11.2008.

Thereafter, the revision petitioner chose to file an appeal in C.M.A.SR. No. 178 of 2009 on the file of the learned District Judge, Kanyakumari at Nagercoil along with an application I.A. No. 16 of 2009 to condone the delay in filing the Civil Miscellaneous Appeal against the order dated 13.02.2007 by which E.A. No. 523 of 2005 in E.P. No. 48 of 2005 in O.S. No. 223 of 2002 came to be dismissed. However, the revision petitioner computed the delay at 341 days and prayed for an order condoning the said delay of 341 days in filing the Civil Miscellaneous Appeal. The only reason assigned therein was that immediately after the dismissal of the execution application, certified copies were obtained and CRP (NPD)(MD) No. 700 of 2008 was filed before the Madurai bench of the Madras High Court; that the same was disposed of on 12.11.2008 granting liberty to the revision petitioner to file an appeal with an application to condone delay and that thereafter, she applied for and got copy of the order of the High Court and then filed the appeal and that in the said process a delay of 341 days had been caused.

The application was resisted by the respondents 1 to 3 herein contending that the fourth respondent had instigated his mother, the revision petitioner to file the Execution Application which was dismissed on 13.02.2007 by the Sub-Court; that after a long gap, they approached the High Court in CRP (NPD)(MD) No. 700 of 2008 which was also rejected by the High Court; that hence, the revision petitioner was bound to explain each day''s delay with proper reason to be substantiated by evidence; that there was a wrong calculation of the number of days of delay, as according to the respondents 1 to 3, there was a delay of 702 days whereas the revision petitioner had projected the delay to be only 341 days; that no valid reason had been assigned for the delay and that hence the petition should be dismissed.

The learned District Judge, Kanyakumari at Nagercoil, after enquiry, considered the rival contentions and found that the total number of days of delay came to 603 days whereas the revision petitioner claimed the delay to be only 341 days. The learned District Judge also came to the conclusion that no valid reason was assigned by the revision petitioner for the delay from the date of passing of the impugned order till the date of filing of the Civil Revision Petition and that no acceptable reason was assigned for the delay caused even after the dismissal of the earlier Civil Revision Petition. Ultimately, the learned District Judge came to the conclusion that the delay was not properly calculated; that the delay was not proved to be due to reasons beyond the control of the revision petitioner and that the application seeking condonation of delay in filing the appeal was liable to be dismissed. Accordingly, the learned District Judge, dismissed I.A. No. 16 of 2009 in C.M.A.SR. No. 178 of 2009 by order dated 26.03.2010. The legality and sustainability of the said order is questioned before this Court by preferring the present Civil Revision Petition u/s 115 of the Civil Procedure Code.

The point that arises for consideration in this revision petition is as follows: Whether the order of the learned District Judge, Kanyakumari dismissing I.A. No. 16 of 2009 in C.M.A.SR. No. 178 of 2009, holding that the extent of delay was not properly calculated and that the delay was not properly explained, is liable to be interfered with in exercise of the revisional powers of this Court u/s 115 of the Civil Procedure Code?

The arguments advanced by Mr. K. Sreenivasan, learned Senior counsel for the petitioner and by Mr. K.P. Narayana Kumar, learned counsel for the respondents 1 to 3 were heard. The materials brought before this Court in the form of typed-set of papers were also taken into consideration.

The revision petitioner is the mother of the fourth respondent and she was not a party to the suit in O.S. No. 223 of 2002 filed by the respondents 1 to 3 herein against the fourth respondent herein on the file of the learned Principal Subordinate Judge, Padmanabhapuram for maintenance. The trial Judge, namely the learned Principal Subordinate Judge, Padmanabhapuram passed a decree against the fourth respondent herein directing him to pay a sum of Rs. 1,08,000/- towards past maintenance and a recurring payment of Rs. 3,000/- per month towards future maintenance from 05.09.2001 and also a cost of Rs. 10,801/-. For the decreetal amount, the trial Court also created a charge over the suit properties which were described as Items 1, 2 and 3 in the plaint schedule. As the fourth respondent did not comply with the direction made against him in the decree regarding payment of maintenance, the respondents 1 to 3 filed an Execution Petition in E.P. No. 48 of 2005 on the file of the trial Court, namely the Court of Principal Subordinate Judge, Padmanabhapuram for realization of the decree amount by the sale of the charged properties. The revision petitioner, who was a third party to the said proceedings, preferred an application in E.A. No. 523 of 2005 assuming that the properties sought to be sold were attached praying for raising of attachment and for the release of those properties from attachment on the basis of her claim that she was the actual owner of the properties. After enquiry, the said execution application was dismissed on merit holding that there was an admission that she had settled those properties in favour of the fourth respondent herein and those properties in the name of the fourth respondent were made the subject matter of the charge and that the charge was sought to be enforced for the recovery of the decreetal amount by bringing the charged properties for sale. Ultimately, the claim made by the revision petitioner in E.A. No. 523 of 2005 was dismissed by an order dated 13.02.2007.

Sub-clause 4 of Rule 58 under Order XXI CPC makes an order passed on adjudication of a claim or objection, under the said rule, an order appealable as if it were a decree. Despite the fact that such an order is an appealable order, the revision petitioner chose to prefer a revision invoking the power of superintendence of this Court under Article 227 of Constitution of India by filing CRP (NPD)(MD) No. 700 of 2008. When the matter came up before this Court, the said Civil Revision Petition was dismissed holding that only an appeal would lie. However, accepting the request made by the learned counsel for the revision petitioner herein, the Civil Revision Petition was dismissed giving liberty to the revision petitioner to file an appeal before the appellate forum, along with an application to condone the delay in filing the appeal.

It is pertinent to note that the order dismissing E.A. No. 523 of 2005 was passed on 13.02.2007 and the certified copies of the same were obtained on 18.04.2007. However CRP (NPD)(MD) No. 700 of 2008 came to be filed only after a year i.e., only on 02.04.2008. The same came to be dismissed on 12.11.2008 giving liberty to the petitioner to file an appeal along with a petition to condone delay. When a Civil Revision Petition is dismissed holding that such revision would not lie and only an appeal would lie, even without an order granting liberty to file an appeal, appeal can be filed and the period during which proceedings were diligently prosecuted in a wrong Court can be sought to be excluded from the time taken for filing the appeal by invoking Section 14 of the Limitation Act. The revision petitioner need not have applied for the supply of certified copies of the order dated 12.11.2008 passed in the revision in CRP (NPD) (MD) No. 70 of 2008. The appeal could have been filed along with an application to condone delay without accompanied by a copy of the order of the High Court. Still, the revision petitioner seems to have taken time till a copy of the order passed in the revision came to be obtained. Though a copy of the order of this Court was obtained on 14.11.2008 itself, the unfilled civil miscellaneous appeal in C.M.A.SR. No. 178 of 2009 on the file of the District Court, Nagercoil came to be filed only on 12.01.2009. In this regard, the following dates are material to decide the question "whether the learned District Judge was right in dismissing the application seeking condonation of delay in filing the appeal?"

i) E.A. No. 523 of 2005 was dismissed by an order dated 13.02.2007.

ii) Copy application was filed and copies were obtained by the revision petitioner on 18.04.2007.

iii) The time for filing an appeal was thirty days and hence the appeal ought to have been filed on or before 18.05.2007. Suppose the appeal had been presented on the re-opening day after summer vacation, the period between 19.05.2007 and the reopening day after summer vacation would have been excluded.

iv) It is a case wherein the appeal was filed only in January 2009 and hence the delay has to be calculated from 19.05.2007.

As such, the learned Principal District Judge has calculated the delay as 603 days. While so, the learned District Judge completely disregarded the fact that the period during which the earlier Civil Revision Petition, namely CRP (NPD)(MD) No. 700 of 2008 was pending before this Court could be deducted from the period of limitation as it is the period spent on prosecuting another proceedings before a wrong Court. The dates of filing of the earlier Civil Revision Petition and its dismissal are furnished as 02.04.2008 and 12.11.2008 respectively. The said period comes to 224 days. Therefore, if at all the revision petitioner is able to prove that she was diligently prosecuting another proceeding, namely earlier Civil Revision Petition, in a wrong Court, she would be entitled to deduct the said period from the delay caused in filing the appeal as such an exclusion is permissible and is provided u/s 14 of the Limitation Act.

The revision petitioner field Interlocutory Application before the District Judge, Kanyakumari District at Nagercoil contending that there was only a delay of 341 days. It is not known as to how the revision petitioner arrived at the figure. The only answer will be that the revision petitioner had chosen to give less number of days of delay in an attempt to get a favourable order. As there was a delay of 603 days in preferring the appeal, the revision petitioner ought to have explained the said delay. Except the contention that the revision petitioner had filed an earlier revision, namely CRP (NPD)(MD) No. 700 of 2008 which was dismissed granting liberty to the revision petitioner to file an appeal with an application to condone the delay, no other reason has been assigned by the revision petitioner. In fact, after the passing of the order dismissing the execution application filed under Rule 58 Order 21 CPC, namely E.A. No. 523 of 2005 on 13.02.2007, the revision petitioner filed copy application and got the certified copies of the fair and decreetal orders on 18.04.2007. Suppose the revision petitioner had filed the earlier revision immediately after obtaining the certified copies, the period from the date of filing of the earlier Civil Revision Petition till the date of dismissal of the same can be sought to be excluded u/s 14 of the Limitation Act. The same is not the case here. Though certified copies of the fair and decreetal orders were obtained on 18.04.2007, the revision petitioner chose to wait for nearly a year and thereafter filed CRP (NPD)(MD) No. 700 of 2008 only on 02.04.2008. The numbering of the said earlier Civil Revision Petition would be sought to be projected as condonation of delay in preferring the Civil Revision Petition. But the mere fact that an order came to be passed condoning the delay in filing an improper proceedings will not be enough to contend the delay prior to the filing of the earlier Civil Revision Petition was condoned and hence the same need not be explained in an application filed along with the appeal. The condonation of delay in preferring a Civil Revision Petition which is not maintainable will not enure to the benefit of the appellant when an appeal is filed after the dismissal of the Civil Revision Petition as not maintainable in view of availability of the remedy of appeal. The mere fact that the High Court, while dismissing the Civil Revision Petition, has granted liberty to the revision petitioner to file an appeal with an application to condone the delay will not mean that the delay in filing the appeal has got be condoned or that the High Court by granting such leave has expressed satisfaction regarding the reasons for the delay in filing the appeal. In fact, the very fact that the High Court has directed the filing of the appeal with an application to condone delay will make it abundantly clear that such an application to condone delay ought to be considered on its own merit and the entire delay has got to be explained. In this regard, as rightly contended by respondents 1 to 3, absolutely there is no explanation for the delay from 19.04.2007 till 02.04.2008, namely the date of filing of the earlier Civil Revision Petition.

It is the contention of the learned counsel for respondents 1 to 3 that the filing of the earlier Civil Revision Petition cannot be construed to be an institution of proceedings in a wrong Court and prosecution of the same diligently as the said Civil Revision Petition itself was filed with a delay of nearly a year, in fact just 16 days short of a year. Learned counsel for respondents 1 to 3 would contend that the very filing of the revision itself was with a calculated object of purchasing time and protracting the case as long as possible. The contention of the learned counsel for the respondents 1 to 3, in other words, is that the revision petitioner chose to file the earlier revision belatedly, knowing fully well that the remedy available to her was to file an appeal, with a view to project the period spent on prosecuting the earlier revision as a period coming u/s 14 of the Limitation Act.

The said contention of the learned counsel for the respondents 1 to 3 seems to be a sound one, especially when the affidavit of the revision petitioner does not speak about diligency in prosecuting the earlier Civil Revision Petition thinking it to be the proper course of action. As rightly pointed out by the learned counsel for the respondents 1 to 3, there is no reason whatsoever assigned for the delay from 19.04.2007 to 02.04.2008, the date on which the earlier Civil Revision Petition was filed. The earlier Civil Revision Petition was filed not u/s 115 of the CPC and on the other hand, it was filed under Article 227 of the Constitution of India only in order to get over the difficulty of Limitation. As such, this Court is of the considered view that the filing of the earlier Civil Revision Petition itself was with an intention to purchase time and to escape from the responsibility of explaining the delay caused in preferring the appeal. As such, the filing and prosecution of the earlier Civil Revision Petition CRP (NPD)(MD) No. 700 of 2008 cannot be said to be a bonafide or diligent prosecution of a proceedings before a wrong Court and hence, the period spent on the earlier Civil Revision Petition cannot be excluded u/s 14 of the Limitation Act. Hence the total number of days of delay counted by the learned District Judge should be found to be correct and it cannot be found fault with.

If it is assumed for arguments sake, that the filing of the earlier Civil Revision Petition was not malafide and it was bonafide and hence the period spent on prosecuting the earlier Civil Revision Petition was entitled to exclusion u/s 14 of the Limitation Act, even then the number of days of delay shall be reduced by the period spent on prosecuting CRP (NPD)(MD) No. 700 of 2008 alone. The total number of days spent on Civil Revision Petition is 224 days. If it is deducted from 603, the total number of days, the balance will come to 389 days. The revision petitioner has wrongly noted the delay to be 341 days. Even for the said delay, revision petitioner does have no reasonable excuse. As pointed out supra, there is absolutely no reason forthcoming for the delay caused from the date of passing of the order by the executing court till the filing of the earlier Civil Revision Petition which is more than a year. Furthermore, even after the dismissal of the earlier Civil Revision Petition, the revision petitioner took two more months to file the appeal along with the application to condone the delay. That part of the delay also has not been properly explained. If all these aspects are considered in proper perspective, the probable and only conclusion that can be arrived at is that the revision petitioner has not explained the inordinate delay in preferring the appeal against the order of the execution Court dated 13.02.2007 made in E.A. No. 523 of 2005 and that the decision arrived at by the learned District Judge to dismiss her application, namely I.A. No. 16 of 2009 seeking condonation of the delay in preferring the appeal cannot be termed either infirm or defective. It can''t be said that there is either failure to exercise the jurisdiction vested in the court below or exercise of jurisdiction not vested in the Court below. It is also not a case of exercise of jurisdiction illegally or with material irregularity. The order cannot be even projected as passed with material irregularity causing injustice or miscarriage of justice. No valid ground for successfully challenging the impugned order of the lower Court, namely the order dated 26.03.2010 made in I.A. No. 16 of 209 in unnumbered C.M.A.SR. No. 178 of 2009 has been made out by the revision petitioner.

For all the reasons stated above, this Court comes to the conclusion that there is no merit in the revision and the same deserves to be dismissed. Accordingly, the Civil Revision Petition is dismissed. However, there shall be no order as to costs. M.P. (MD) No. 1 of 2010 is closed.