Animadverting upon the order dated 12.01.2012 passed by the Principal Subordinate Judge, Coimbatore in I.A.No.68 of 2011 in ASCFR No.1733 of 2011, this civil revision petition is focussed.
2. The parties are referred to hereunder according to their litigative status and ranking before the lower Court.
3. The epitome and the long and short of the relevant facts absolutely necessary and germane for the disposal of this revision would run thus:
The respondent herein filed the suit for recovery of money based on promissory and after contest, the suit was decreed. Thereafter, E.P. was filed for attaching the property of the judgment debtor and selling the same for the purpose of recovering the decreetal dues. At that time, application under Section 5 of the Limitation Act was filed along with appeal memorandum before the appellate Court for getting the delay of 1065 days condoned in filing the appeal. The said application was heard by the appellate Court and the same was dismissed.
4. Being aggrieved by and dissatisfied with the said order of dismissal, this revision is focussed on various grounds.
5. The learned counsel for the petitioner placing reliance on the grounds of revision would develop his arguments thus:
Obviously and axiomatically, owning to the mistake committed by the counsel in pursuing the copy application filed at the appropriate time, there arose the necessity to file one other copy application and after obtaining such certified copy of the judgment and decree, the appeal was filed and in the meantime, the judgment debtor also entered appearance in the E.P. No doubt, there was some communication gap between the petitioner and the party concerned. Because of the revision petitioner's pre occupation with his other works also the delay occurred. Subject to payment of cost by the revision petitioner to the respondent, opportunity could be given to him so as to seek his remedy before the appellate Court. In this case, already the property of the judgment debtor was attached and the E.P. is pending. Without prejudice to the pendency of the E.P., opportunity could be given to the revision petitioner to put forth his case before the appellate forum.
6. Whereas, the learned counsel for the respondent in order to make mince meat of and torpedo the arguments as put forth and set forth on the side of the revision petitioner, would submit that absolutely there is no merit in this revision. The reasons found set out in the affidavit accompanying the application filed under Section 5 of the Limitation Act that the revision petitioner was constrained to go to Kerala for his livelihood, was not found substantiated and it was nothing but a plea dished out purely for the purpose of camouflaging and concealing the laches in prosecuting his case further. Considering the entire circumstances, the lower Court rejected the prayer for condoning the huge delay of 1065 days in preferring the appeal, warranting no interference in the revision.
7. The learned counsel for the respondent would cite the decision of this Court reported in 2009(5) CTC 48 [Shanmugam v. Chokkalingam], as against which the learned counsel for the petitioner would cite the decision of this Court reported in 2012-2-L.W.37 [Tamil Nadu Defence Officers Co-operative Housing Society Ltd., rep. By its Secretary, office at Defence Officers Colony, Chennai 600 032 v. R.Sakkubai @ Chokkammal].
8. I am of the view that catena of decisions could be cited on either side. Now the law is well settled in the following judgments of the Hon'ble Apex Court:
(i) 2010(2) Supreme 115 (Oriental Aroma Chemical Industries Ltd., vs. Gujarat Industrial Development Corporation and another); an excerpt from it would run thus:
"8. ............The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time. The expression "sufficient cause" employed in Section 5 of the Indian Limitation Act, 1963 and other similar statutes is elastic enough to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate - Collector, Land Acquisition, Anantnag v. Mst.Katiji, (1987) 2 SCC 107, N.Balakrishnan v. M.Krishnamurthy, (1998) 7 SCC 123 and Vedabai v. Shantaram Baburao Patil, (2001) 9 SCC 106. ..........................."
(ii) AIR 2002 SC 1201 (Ram Nath Sao alias Ram Nath Sahu and aothers v. Gobardhan Sao and others); certain excerpts from it would run thus:
"13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the Court should lean against acceptance of the explanation. While condoning the delay, the Court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses." (emphasis added)
9. The gist and kernel of the aforesaid judgments would be to the effect that there could be no strait jacket formula for condoning the delay in filing the applications or appeal before the Court. Each and every case has to be decided on its own merits. Here without fear of contradiction, the petitioner had set forth and put forth the point that earlier the copy application was filed within time, but that was dismissed and steps taken to get it restored also ended in a fiasco. Subsequently fresh application was filed, whereupon he could get the judgment and decree and thereafter, he filed application under Section 5 of the Limitation Act. No doubt, there are materials to show that pending presentation of application under Section 5 of the Limitation Act, the judgment debtor entered appearance in the E.P. The delay occurred because of lack of due diligence in pursuing the copy application filed for the first time before the lower Court. What I could see from the records is that the position of the decree holder/respondent as on date is safe and secure, because already it seems the Executing Court effected attachment of the judgment debtor's property. Within a period of two months, the appeal itself could be heard and disposed of, because the appeal emerges out of money suit. If really the decree holder is having a strong case, naturally he could get the appeal dismissed and thereafter, proceed with the E.P. without any hindrance whatsoever and even the steps so far he has taken in the E.P would not get frustrated.
10. In the interest of audi alteram partem and by compensating the respondent, one more opportunity could be given to the revision petitioner to prosecute his appeal. Wherefore, I am of the view that this revision could be allowed setting aside the order of the lower Court and by allowing the application under Section 5 of the Limitation Act and condoning the delay of 1065 days, subject to the condition that a sum of Rs.3,000/- (Rupees three thousand only) be paid by the revision petitioner to the respondent within a period of fifteen days from this date; whereupon, the appellate Court shall number the appeal if it is otherwise than in order and see to it that it is disposed of within a period of two months thereafter.
11. Accordingly, this civil revision petition is disposed of. No costs. Consequently connected miscellaneous petition is closed.
12. On hearing this order, the learned counsel for the petitioner by way of complying with this order, paid the said amount of Rs.3,000/- (Rupees three thousand only) to the learned counsel for the respondent and the same was received by him.
gms To The Principal Subordinate Judge, Coimbatore