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Monday, April 1, 2013

condone the delay = True it is, that courts should always take liberal approach in the matter of condonation of delay, particularly when the appellant is the State but in a case where there is serious laches and negligence on the part of the State in challenging the decree passed in the suit and affirmed in appeal, the State cannot be allowed to wait to file objection under Section 47 till the decree holder puts the decree in execution. As noticed above, the decree passed in the year 1967 was in respect of declaration of title and permanent injunction restraining the Respondent-State from interfering with the possession of the suit property of the plaintiff-appellant. It is evident that when the State tried to interfere with possession the decree holder had no alternative but to levy the execution case for execution of the decree with regard to interference with possession. In our opinion their delay in filing the execution case cannot be a ground to condone the delay in filing the revision against the order refusing to entertain objection under Section 47 CPC. This aspect of the matter has not been considered by the High Court while deciding petition for condoning the delay. Merely because the Respondent is the State, delay in filing the appeal or revision cannot and shall not be mechanically considered and in absence of ‘sufficient cause’ delay shall not be condoned.


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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 2677 of 2013
(Arising out of Special Leave Petition (Civil) No. 27910 of 2012)
Amalendu Kumar Bera & Ors. …. Appellants
Vs.
The State of West Bengal . …..Respondent
J U D G M E N T
M.Y. EQBAL, J.
Leave granted.
2. Aggrieved by the order dated 22nd March, 2012 passed by
the Calcutta High Court in C.O. No. 602 of 2012, the petitioner-decreeholder preferred this appeal. The High Court in exercise of power under
Article 227 of the Constitution of India had refused to interfere with the
order passed by the District Judge, Purba, Medinipur in Civil Revision
No.1 of 2011, condoning the delay in filing the Revision Petition.
3. Although the Courts have always exercised discretion in
favour of the person seeking condonation of delay in filing the appeal or
revision, but in the facts and circumstances of this case, whether thePage 2
District Judge was justified in condoning the delay occurred in filing the
revision petition?
4. The facts of the case lie in the narrow compass.
5. The plaintiff- appellant filed a suit in the year 1967 being Title
Suit No.483 of 1967 for declaration of title in respect of the suit property
and also for a decree for permanent injunction restraining the
Respondent-State from interfering with the possession of the suit
property. The suit was contested by the Respondent- State of West
Bengal by filing written statement. The Trial court passed a contested
decree in favour of the appellant in respect of the suit property in terms
of judgment and decree dated 7.8.1969. Dissatisfied with the judgment
and decree the Respondent – State filed an appeal being Title Appeal
No.653 of 1969. The appeal was finally heard and dismissed by the
Additional District Judge, 1st Court Midnapore on 13.8.1970. No further
appeal or revision was filed by the Respondent-State. The appellantdecree holder then put the decree in execution by levying execution
case No.27 of 2009. In the said execution case, the respondent state
filed objection under Section 47 of the Code of Civil Procedure, which
was converted into miscellaneous case No.18 of 2010. The objection
inter-alia was that the execution case is barred by law of limitation and
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that the suit land is a Khasmahal land of the Government. The petitioner
decree holder has no right title and interest in the suit property. It was
further stated that the judgment and decree passed in the suit is
without jurisdiction and is a nullity. The executing court by reasoned
order dated 17.8.2010 dismissed the objection petition. By the said
order passed in Miscellaneous Case No.18 of 2010 the Court held that
the judgment and decree attained finality and the decree-holder who is
pursuing the litigation since 1967 should not be deprived of from the fruit
of the decree. The executing court further held that the objection under
Section 47, C.P.C. challenging executability the decree is a futile
attempt by the State to delay the execution proceedings of the decree
holder.
6. After the dismissal of the objection filed by the respondentState, the executing Court proceeded with the Execution Proceedings
and steps were taken for issuance of writ of attachment of moveable
property of the judgment debtor-state. In the meantime, the respondent
State filed another objection on 15.9.2011 under Section 47 CPC for
setting aside the decree passed in the suit and also for recall of the writ
of attachment. The executing court after hearing the respondent-State
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rejected the said petition by order dated 15.9.2011. For better
appreciation, the order dated 15.9.2011 is reproduced herein-below:-
“The record is put up for petition filed by the Jdr.
Who also files a petition under Section 47 of C.P.C.
for setting aside the decree passed by the Court in
T.S. 483/1967 along with a petition for recalling the
writ of execution.
Copy served and objected to:
It manifest from the record that decree in T.S.
483/67 was passed on 7.8.1969. Apparently, an
appeal was preferred by the defendants/state
against such judgment and decree, but the same
was also dismissed.
Eventually, the decree holder files the instant
executing case for executing decree so obtained,
after taking fresh steps upon the JDR. JDR/State
appeared and files a w/o against the instant
executing case on 6.4.2010 and the same was
registered as J. Miscellaneous No.18/2010 under
Section 47 of C.P.C. Upon contested hearing of the
J. Miscellaneous case, this Court by way of order
No.18 dated 17.8.2010 rejected the J.
Miscellaneous case on contest observing inter alia
that the said objection under Section 47 of C.P.C. is
a fulfill attempt by the State of W.B. to delay the
executing proceeding of the decree holder.
Thereafter, the decree holder took steps for
executing of the decree passed on 7.8.1969 and
then in course of the time. Writ of Attachment of
moveable property under order 21 Rule 30 CPC
was issued, and the date has been fixed on
20.09.2011 for return of such writ upon execution.
Now, the JDR/State has filed fresh petition
under Section 47 of C.P.C. along with a prayer for
recall writ of attachment. However, since the state
had already instituted an objection case under
Section 47 of C.P.C. and the same has already
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been disposed of and there present petition under
Section 47 of C.P.C. is misconceived and liable to
be rejected. Consequently, the petition for recall of
writ is also misconceived and liable to be rejected.”
Hence, it is
Ordered
That the petition under section 47 of C.P.C. dated
15.9.2011 is considered and rejected.
That the petition dated 15.9.2011 for recall of writ of
attachment , issued on 20.08.2011 is consequently
rejected.
To date.”
7. After the said objection under Section 47 was rejected on
15.9.2011, the Respondent-State filed a Civil Revision before the District
Judge challenging the earlier order dated 17.8.2010, whereby the
objection under Section 47 C.P.C. in miscellaneous case No.18 of 2010
was dismissed. Along with the said revision petition, a separate
application under Section 5 of the Limitation Act was filed for
condonation of delay in filing the revision petition. The learned District
Judge stayed the operation of the order dated 17.8.2010 on the ground
that the interest of the State will be adversely affected and the very
object of the filing the revision petition will be frustrated. The said stay
order was passed on 2.11.2011.
5Page 6
8. On 3.2.2011, the Limitation Petition filed by the respondent
under Section 5 of the Limitation Act for condoning the delay in filing the
Revision Petition was taken up for hearing. Although, the District Judge
in its order dated 3.2.2012 noticed that the Courts do not have unlimited
and unbridled discretionary powers to condone the delay and the
discretion has to be exercised within reasonable bounds, known to law.
Even then the Court allowed the Limitation Petition and condoned the
delay in filing the revision Petition. Aggrieved by the said order the
appellant-decree holder moved the Calcutta High Court by filing a
revision petition being C.O. No.602 of 2012. The High Court by
impugned order dated 23.3.2012 dismissed the revision petition on the
ground inter-alia that a liberal attitude should be adopted in the matter of
condonation of delay when there is no gross negligence or deliberate
inaction or lack of bona-fide on the part of the State. Hence, this appeal
by the appellant-decree holder challenging the aforesaid order passed
by the High Court in Revision Petition.
9. We have heard the learned counsel appearing for the
appellant and the learned counsel appearing for the Respondent-State.
There is no dispute that the expression ‘sufficient cause’ should be
considered with pragmatism in justice oriented approach rather than the
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technical detection of ‘sufficient cause’ for the explaining every days’
delay. However, it is equally well settled that the Courts albeit liberally
considered the prayer for condonation of delay but in some cases the
Court may refuse to condone the delay in as much as the Government is
not accepted to keep watch whether the contesting respondent further
put the matter in motion. The delay in official business requires its
pedantic approach from public justice perspective. In a recent decision
in the case of Union of India vs. Nirpen Sharma AIR 2011 SC 1237
the matter came up against the order passed by the High Court
condoning the delay in filing the appeal by the appellant-Union of India.
The High Court refused to condone the delay on the ground that the
appellant-Union of India took their own sweet time to reach the
conclusion whether the judgment should be appealed or not. The High
Court also expressed its anguish and distress, the way the State
conduct the cases regularly in filing the appeal after the same became
operational and barred by limitation.
10. In the instant case as noticed above, admittedly earlier
objection filed by the Respondent-State under Section 47 of the Code
was dismissed on 17.8.2010. Instead of challenging the said order the
Respondent-State after about one year filed another objection on
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15.9.2011 under Section 47 of the Code which was finally rejected by
the executing court. It was only after a writ of attachment was issued by
the executing court the respondent preferred civil revision against the
first order dated 17.8.2010 along with a petition for condonation of delay.
Curiously enough in the application for condonation of delay no sufficient
cause has been shown which entitle the respondent to get a favourable
order for condonation of delay. 
True it is, that courts should always take
liberal approach in the matter of condonation of delay, particularly when
the appellant is the State but in a case where there is serious laches and
negligence on the part of the State in challenging the decree passed in
the suit and affirmed in appeal, the State cannot be allowed to wait to file
objection under Section 47 till the decree holder puts the decree in
execution. As noticed above, the decree passed in the year 1967 was in
respect of declaration of title and permanent injunction restraining the
Respondent-State from interfering with the possession of the suit
property of the plaintiff-appellant. It is evident that when the State tried
to interfere with possession the decree holder had no alternative but to
levy the execution case for execution of the decree with regard to
interference with possession. In our opinion their delay in filing the
execution case cannot be a ground to condone the delay in filing the
8Page 9
revision against the order refusing to entertain objection under Section
47 CPC. This aspect of the matter has not been considered by the High
Court while deciding petition for condoning the delay. Merely because
the Respondent is the State, delay in filing the appeal or revision cannot
and shall not be mechanically considered and in absence of ‘sufficient
cause’ delay shall not be condoned. 
11. For the aforesaid reasons we do not find any justification in
condoning the delay in filing the revision petition. This appeal is,
therefore, allowed and the impugned order passed by the High Court is
set aside. Consequently, petition for condonation of delay in filing the
revision petition stands rejected.
…………………………..J
(Surinder Singh Nijjar)
………………………….J.
(M.Y. Eqbal)
New Delhi
March 22, 2013
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