C.R.No.7376 of 2009 #1# IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.R.No.7376 of 2009 Date of decision: 4.10.2011 Gurvinder Singh ….Petitioner Vs. Jagdeep Singh and others ….Respondents CORAM: HON’BLE MR. JUSTICE JASWANT SINGH Present: Mr. Jitender Singla, Advocate for the petitioner. Mr. Guljar Mohammad, Advocate for respondent Nos.1 to 4 & 6. Jaswant Singh, J By filing the present revision petition, petitioner-JD has prayed for setting aside the order dated 20.4.2009 passed by the learned Additional District Judge (Fast Trak Court), Ludhiana whereby their application under Section 5 of the Limitation Act. 1963 (for short “1963 Act”) for condonation of delay as well as the appeal itself has been dismissed. Brief facts of the case are that the original plaintiff-Bhinder Singh/Decree holder (father of respondent Nos.1,3 & 4 and husband of respondent No.2) filed a suit for recovery of Rs.5,15,200/- against the defendant-Gurdev Singh/judgment debtor (respondent No.5) and the same was decreed vide judgment and decree dated 11.10.2001. Thereafter, execution proceedings were initiated against the judgment debtor- respondent No.5 and it is asserted that the learned Executing Court vide order dated 11.8.2004 wrongly directed for issuance of sale warrants of the C.R.No.7376 of 2009 #2# house (which was already attached) of the petitioner, who was not a party to the suit, instead of that of J.D/Gurdev Singh (respondent No.5). Aggrieved against the order dated 11.8.2004, petitioner filed an objection petition (P.2) before the learned Executing Court but the same was dismissed as not maintainable by the learned Executing Court vide its order dated 28.5.2005 (P.3). Ultimately, Civil Revision No.4466 of 2005 was filed by the present petitioner, which was dismissed as withdrawn on 23.2.2007 with liberty to file an appeal against the order dated 28.5.2005. Thereafter, an appeal dated 6.3.2007 (P.5) alongwith application (P.6) seeking condonation of delay was filed but the same has been dismissed vide the impugned order, hence the present petition. Learned counsel for the petitioner argues that due to the wrong advice of petitioner's counsel, revision petition No.4466 of 2005 was filed on 25.8.2005 (P.4) in this Court against the order dated 28.5.2005 (P.3), which was ultimately dismissed as withdrawn vide order dated 23.2.2007 and the appeal thereagainst was filed on 6.3.2007 and as such in view of provisions of Section 14 of 1963 Act, the period of limitation consumed while pursuing the Civil Revision ought to have been condoned by the learned trial Court and instead of dismissing the application for condonation of delay as well as the main appeal, the same should have been allowed. On the other hand, learned counsel for the respondents fully supported the impugned order and vehemently opposed the contentions raised by learned counsel for the petitioner. After hearing learned counsel for the parties and going through the record, this court does not find any merit in the present petition and the same deserves dismissal. C.R.No.7376 of 2009 #3# It is not in dispute that the objections against the order dated 11.8.2004 (P.1) were dismissed by the learned Executing Court vide order dated 28.5.2005 (P.3) as not maintainable. It is also admitted in para 5 of the present petition that against the order dated 28.5.2005, Civil Revision was filed before this Court only on 28.8.2005 i.e after a period of three months. It is also matter of record that the Civil Revision was dismissed as withdrawn with liberty to file an appeal against the order dated 28.5.2005 however, no indulgence of this Court was sought for condonation of delay at the time of withdrawing the revision petition on 23.2.2007. The petitioner is trying to take the benefit of Section 5 along with Section 14 of 1963 Act, which is not available in a proceeding relating to order XXI of the Code of Civil Procedure and Section 5 of 1963 Act reads as under: “5. Extension of prescribed period in certain cases.- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation.- The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.” A perusal of Section 5 reproduced hereinabove makes it abundantly clear that the benefit of condonation of delay shall not be available to any of the proceedings relating to Order 21 of the CPC. Undisputedly, the order dated 28.5.2005, which was sought to be challenged by the petitioner in an appeal, had resulted in a proceeding under Order 21 C.R.No.7376 of 2009 #4# of the CPC, therefore, the benefit of Section 5 & 14 of 1963 Act cannot be extended to the petitioner. Furthermore, the Hon'ble Supreme Court has also held in a judgment reported as Damodaran Pillai & Others v. South Indian Bank Ltd, 2005 (4) RCR (Civil) 132 that an application under Section 5 of 1963 Act is not maintainable in a proceeding arising under Order 21 of the CPC. Para 15 of the said judgment reads as under: “An application under Section 5 of the Limitation Act is not maintainable in a proceeding arising under Order XXI of the Code. Application of the said provision has, thus, expressly been excluded in a proceeding under Order XXI of the Code. In that view of the matter, even an application under Section 5 of the Limitation Act was not maintainable. A fortiori for the said purpose, inherent power of the court cannot be invoked.” Keeping in view the facts and circumstances discussed hereinabove, this Court finds no illegality or perversity in the impugned order dated 20.4.2009 passed by the learned Additional District Judge (Fast Trak Court), Ludhiana warranting interference under Article 227 of the Constitution. Dismissed. October 04, 2011 ( JASWANT SINGH ) manoj JUDGE