CM(M)--572/2011. Case: MAHINDER KAUR & ANR. Vs. PAMELA MANMOHAN SINGH & ORS.. High Court of Delhi (India)
| Case Number | CM(M)--572/2011 |
| Citation | NA |
| Judgement Date | May 29, 2015 |
| Court | High Court of Delhi (India) |
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 14.11.2014 Date of Decision: 29.05.2015 + CM(M) 572/2011 & CM No.9312/2011
MAHINDER KAUR & ANR. ..... Petitioners
Through: Mr. Praveen Kumar, Adv. versus
PAMELA MANMOHAN SINGH & ORS. ..... Respondents Through: Mr. Mahender Rana, Adv. for R-1.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI NAJMI WAZIRI, J.
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This petition under Article 227 of the Constitution of India, impugns an dated 05.02.2011 (hereafter „impugned order‟) passed by the Additional District Judge (for short „Appellate Court‟), whereby the petitioners‟ application under Section 14 of the Limitation Act, 1963 (for short „Act‟) dismissed. Consequently, the petitioners‟ appeal also, bearing no.
No.7/2010, against the order dated 30.03.2006 passed by the learned Judge, was dismissed as barred by limitation.
Background facts
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The respondents, being Decree Holders (for short „DHs‟) in Suit No. 1080/79, had sought execution of the same. The petitioners resisted the same and their objections which were dismissed by the learned Civil Judge
30.03.2006. In their application under Section 14 of the Act, the petitioners submitted that they were the owners, in possession of property bearing No. 6D, Jungpura, New Delhi by virtue of a sale deed in their favour; that on the of legal advice, they preferred an appeal before the High Court on 17.04.2006,
which was registered as EFA No. 13/2006; that on 24.04.2008, while the appeal was pending and the order impugned therein, i.e., execution proceedings been stayed, the DHs had contended that the appeal was not maintainable before the High Court and it ought to have been filed before the learned District Judge. That by an order dated 24.04.2008, the High Court had directed of the appeal to the petitioners and observed that the pending applications to be decided by the Court of competent jurisdiction; since the interim orders in the returned appeal were passed by the Court without jurisdiction, petitioners had moved an application seeking recall of paragraph 5 of the order dated 24.04.2008 and it was disposed off on 20.05.2008 with the clarification that when “the instant appeal which is directed to be returned to the appellants is re-filed all questions relating to the existence and effect of interim orders would be open to be urged by either party and if urged the learned before whom the appeal is filed would decide the same in accordance with law and that the execution was further stayed by one week. The petitioners argued that since the appeal was returned only on 23.05.2008, no delay attributable to them since it was re-filed before the competent court on the very next day; that they had all along acted on the bona fide impression and that the advice given to them by their counsel was competent and correct law. Additionally, it was contended that the time elapsed before the Court could not be held against them for the purpose of limitation because their appeal was duly registered before the High Court and pursued bonafidely.
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In reply, respondent No.1/DH had argued that the appeal was not only beyond the period of limitation even since it was filed before the High Court
18.04.2006 but also because it was instituted before a Court which had jurisdiction to entertain the same; the petitioners‟ were fully aware that appeal would lie before a Court having competent pecuniary jurisdiction as the valuation of the suit was less than at Rs.3 lacs; initially, the execution petition
was pending before the High Court and on the petitioners‟ objection apropos pecuniary jurisdiction, it was transferred to the learned ADJ; the petitioners, once again, moved an application for want of jurisdiction before the learned ADJ from where the case was transferred to the learned Civil Judge
12.02.2004; that from the aforesaid facts, it was clear that the petitioners well aware that an appeal against the order of the learned Civil Judge would lie before the learned District Judge; that with mala fide intention the petitioners had filed the appeal before the High Court in order to delay the execution of the decree and to deprive the DH of the benefits of the decree. It was further argued that the fact that the appeal was not maintainable before the High Court, clearly in the petitioners‟ knowledge when the order dated 28.05.2007 passed in EFA No.05/2007, yet, the petitioners pursued the matter for another eleven months till 24.4.2008, when the High Court held that the appeal was not maintainable since it lacked the jurisdiction to entertain the same. Therefore, the petitioners‟ mala fide persistence and upon a deliberate prosecution of futile procedure could not be condoned in law, as the petitioners themselves had wantonly chosen the path of wastage of strict statutory limits of time.
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The DH had also taken a preliminary objection that no appeal would lie against the order dated 30.03.2006, whereby the learned Civil Judge had dismissed petitioners‟ objections under Order XXI, Rules 58 and 97 of the CPC. It stated that the petitioners were pendente lite transferees under fraudulent, contemptuous and nullity sale deed dated 06.12.1988 and further barred sections 52 and 6(h) of the Transfer of Property Act, 1882 and section 23 of the Indian Contract Act, 1872. It was further argued that as the very maintainability of the appeal had been seriously questioned by the High Court, the application for condonation of delay in filing the appeal must be decided first; that Section 14 of the Limitation Act is not applicable to appeals and the appeal otherwise barred by limitation; that the petitioners did not act in good faith and
failed to take due care and attention thus they, were not entitled to the exclusion of the period of pendency of the previous appeal which they perniciously pursued to their obvious detriment. It was also contended that the application was not maintainable in view of the petitioners‟ admitted notice and knowledge of the jurisdiction of the Court to which the appeal would lie, as the DHs objected to the pecuniary jurisdiction of the High Court in the execution proceedings, pursuant to which it was transferred to the learned District Judge. Impugned order
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At the outset, the Appellate Court was of the view that the petitioners‟ appeal before the High Court was within the period of limitation and thus, respondent‟s plea in this regard was not sustainable. However...
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