IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1267 of 2007 ASHANI TIWARI Versus SRI KANT TIWARI & ORS ----------- For the petitioner: Mr. S.S. Dwivedi, Sr.Advocate Mr. R.S. Dwivedi, Advocate For the Opp.party: Mr. A.B. Mathur, Sr.Advocate. Mr. Ratan Kumar Sinha, Advocate. ---- 3 22/8/2008 Heard counsel for the petitioner and counsel for the opposite parties. In the considered opinion of this Court the impugned order rejecting application filed by the petitioner under order XXI Rule 19 of the Code of Civil Procedure does not suffer from any jurisdictional error, in as much as, it was found by the court below that the petitioner had knowledge of the decree sought to be executed at least on 02.09.2006 if not earlier because on that date the petitioner had appeared and sought time for obtaining stay from the higher Court. The court below, therefore, has proceeded that when the application was filed by the petitioner under order XXI Rule 19 of the C.P.C. on 6.1.2007 the same was clearly barred being filed beyond 60 days of knowledge Proceeding on that basis the court below has held that the miscellaneous case itself not maintainable. Mr. Shashi Shekhar Dwivedi, learned Senior counsel appearing on behalf of the petitioner would however contend that the court below could not have dismissed the Miscellaneous Case without holding an enquiry and giving opportunity to the petitioner to lead evidence. In support of his 2 contention, the learned counsel relies upon the judgment of this Court in the case of ‘Kamla Prasad & Ors Vs. State Bank of India & Ors.’ reported in 1989 Bihar Law Judgment 309. On perusal of the aforesaid judgment it becomes clear that there was a definite plea taken with regard to lack of knowledge and an explanation was sought to be given for extending limitation on account of illness. In that context, this Court in the case of Kamla Prasad (Supra) had observed that the court below was not powerless in condoning limitation. Facts of this case is absolutely otherwise because counsel for the opposite party has produced before this Court the petition filed by the petitioner under Order XXI Rule 19 of the C.P.C. which does not say a word with regard to lack of knowledge prior to 6.1.2007. On the other hand, paragraph 4 of the petition goes to show that he was conveyed by the court on 2.9.2006 which was sought to be confirmed by showing that it was only on 1.1.2007 that the petitioner had got telephonic message that the petition for stay of execution case has been rejected by the High Court. That would therefore be sufficient to hold that the petitioner had knowledge about the execution case, as recorded in the impugned order on 2.9.2006. There is also nothing at least in the application filed by the petitioner seeking to extend delay after 60 days. In that view of the matter Mr. Mathur, 3 counsel for the opposite parties seems to be correct in placing reliance on the judgment of this Court in the case of Sri Ramasharay Prasad Choudhary Vs. Krishnandan Singh, reported in 1999(2) P.L.J.R. 776, wherein it has been held that the executing court will have no jurisdiction to entertain application for setting aside the same filed after the period of 60 days. In fact, in the case of Ramasharay Pd. Choudhary ( Supra) the facts also seem to be identical, in as much as, it was held therein also that the application filed beyond sixty days of knowledge is not maintainable and that there was no question of extending limitation. Having given anxious consideration on the whole issue, this Court therefore finds that the court below has rightly rejected miscellaneous case at the inception. That being so this court would also find no merit in the other plea of the counsel for the petitioner that the court ought to have gone into the question of fraud etc. which in the opinion of this court will not be relevant if the court below was satisfied that the application filed by the petitioner was time barred. Accordingly, this application being devoid of any merit is hereby dismissed. ( Mihir Kumar Jha, J. ) Abhay Kumar