COURTFEES EXEMPTED BYNOTtFICATION N0.996(yD-S870/XXI- B/C.G./05 AS SPECSFiED !N SCi-lEDULE I & U OF THE COURT FEES ACT 1870. \-o IN THE HIGH COURT OF JUDICATURE AT BILASPUR CHHATTISGARH C. R. NoA / 2009 i$^^ ^^^ APPLICANTS / : 1. JUDGEMENT DEBTORS.- '^:. ^- NON APPLICANT DECREE HOLDER State of Madhya Pradesh (Now State of Chhattisgarh) Through Principal Secretary, Department ofAgriculture, DKS Bhawan, Mantralaya, Raipur (CG) The Collector, District Durg (CG) The Superintending Engineer, Water Resources Department, Durg(CG) Department of Agriculture, Soil Conservation, Durg through Officer-in-Charge. VERSUS -Indru Gond, aged about 65 years, S/o R. Potai @ Potu Gond, R/o village Kusumkasa, Tahsil Balod, Distt. Durg (CG) CIVIL REVISION UNDER SECTION 115 OF CODE OF CIVIL PROCEDURE n fV HIGH COURT OF CHHATTISGARH AT BILASPU^ Applicants Judament Debtors Non-apDlicant/ Decree Holder C.R.No.66of2009 State of Mladhya Pradesh & Others Versys Indru Gond Civil Revision under Section 115 ofthe Code of Civil Procedure (SB: Hon'ble Mr. N.K. Aaarwal. J.) Present : Shri GD Waswani, Govt. Advocate for the State/applicants. Shri Malay Shrivastava, Advocate for respondent. ORAL ORDER (Passed on 3rd day of February, 2010) Heard on IA No. 1 , application for condonation of delay. 1. Before dealing with the appljcation for condonation of delay, it would be appropriate to narrate the facts in brief. 2. The non applicant/plaintiff filed a suit against the applicants/defendants seeking relief of possession of the suit land and means profit. The case was contested. The court below on 12.04.1994 (Annexure A/1) passed judgment and decree in favour of the plaintiff. The applicants did not file anyappeal challenging the said judgment and decree and the same had attained finality. 3. In execution, the applicants have preferred an application under Section 47 of CPC on 09.08.2000 on the same grounds which they have taken in their written statement in the civil suit. The trial court, vide order impugned dated 04.04.2006, dismissed the objection preferred by the applicants. There against the instant revision has been preferred after lapse of 1084 days. 8. ^ In the application for condonation of delay, the applicants have stated that after passing of impugned order, an attempt was made to comply with the judgment and decree which was under execution before the trial court, but the non-applicant did not cooperate and also failed to take possession of the land offered even after demarcation, and therefore, it was decided to file a revision against the order impugned. In reply to this application, the non-applicant has submitted that the applicants have not explained the delay of 3 years and 77 days in filing the instant revision and even did not disclose any valid ground to condone the delay in filing the revision. The applicants have adopted the dilatory tactics to frustrate the execution of decree passed in favour of non applicant and thus the action of applicants has caused serious prejudice to theinterest of non applicant, and prayed for its rejection. 1 have heard the counsel appearing for the parties and perused the order impugned. Shri Waswani, learned counsel appearing for the applicants would submit that the said decree has been obtained by fraud and therefore, the decree js a nullity and the same can be assailed by filing objection under Section 47 of CPC. On being asked pointedly, he could not dispute that the grounds in the application under Section 47 of CPC are the same which were earlier taken in the written statement filed in the said suit and after considering the same the trial court has granted a decree in favour of plaintiff. It is also not in dispute that the said judgment and decree was not assailed by filing appeal and it had attained finality. '"'^ ifc:.^I^.. 1 ^ :'i-T"J.S '^... ^'^'' ^•^^^^' IWli^, ^ Section 47 of CPC provides for determination of question arising between the parties to the suit relating to execution discharge or satisfaction of the decree. Undisputedly, aforesaid question were not raised by the applicants by filing application under Section 47 of CPC. As per the applicants, the judgment and decree has been obtained by practicing fraud by the respondent. If question of fraud has been raised earlier inthe suit itself then how they can raise the same question during execution of decree. 9. As per applicants, the aforesaid delay in filing the revision had occurred in the process of compliance of the order impugned and since non applicant did not cooperate then only the opinion was sought to file the instant revision and aforesaid delay had occurred in obtaining opinion of the Government Advocate and in obtaining sanction/permission of the Government. As per the applicants, the Government Advocate opined to file revision vide its letter dated 19.12.2007; the same was sent to State Government; the permission was accorded by the State Government vide its letter dated 29.04.2009 (Annexure P/5), and thereafter, the instant revision has been filed, and therefore, the delay caused is procedural; unintentional and deserves to be condoned. 10. The Supreme Court, in case of the State of West Bengal v. The Administrator, Howrah Municipality and others , while dealing Section 5 of the Limitation Act, observed in paras 26 to 31 as under: 26. The legal position when a question arises under Section 5 of the Limitation Act is fairly well-settled. It is not possible to lay down preciseiy as to what facts or matters 1972 (1) SCC 366 ^\ would constitute "sufficient cause" under Section 5 of the Limitation Act. But it may be safely stated that the delay in filing an appeal should not have been for reasons which indicate the party's negligence in not taking necessary steps, which he could have or should have taken. Here again, what would be such necessary steps will again depend upon the circumstances of a particular case and each case will have to be decided by the courts on the facts and circumstances of the case. Any observation of an illustrative circumstance or fact will only tend to be a curb on the free exercise of the judicial mind by the Court in determining whether the facts and circumstances of a particular case amount to "sufficient cause" or not. It is needless to emphasise that courts have to use theirjudicial discretion in the matter soundly in the interest ofjustice. 27. Mr D. Mukherjj, learned Counsel for the first respondent, is certainly well-founded in his contention that the expression "sufficient cause"cannot be construed too liberally, merely because the party is the Government. It is no doubt true that whether it is a Government or a private party, the provisions of law applicable are the same, unless the statute itself makes any distinction. But it cannot also be gainsaid that the same consideration that will be shown by courts to a private party when he claims the protection of Section 5 of the Limitation Act should also be available totheState. 28. In the case before us, it must be stated in fairness to the learned Solicitor General that he has not contended that the State must be treated differently. On the other hand, his contention is that the reasons given by the appellant, which,according to him will establish "sufficient cause" have not at all been adverted to, much less, considered by the High Court. In our opinion, the contention of the learned Solicitor General is perfectly justified in the circumstances of this case. The High Court, certainly, was not bound to accept readily whatever has been stated on behalf of the State to explain the delay. But, it was the duty of the High Court to have scrutinised the reasons given by the State and considered the same on merits and expressed an opinion, one way or the other. That, unfortunately, is lacking in this case. 29. It has been pointed out by this Court in Ramlal, Motilal and Chhotelal v. Rewa Coalfields Ltd. as followo: "In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In otherwords,when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the Law of Limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light-heartedly disturbed. The other consideration which cannot be K ^\ ^ ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in KrishnaM. Chattappan,Sec6on 5 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words 'sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide imputable to the appellant." 30- From the above observations it is clear that the words "sufficient cause" should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party. 31. No doubt, Mr D. Mukherji obsen/ations at p. 771 to the effect: drew our attention to "The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone." 11. The same view has been reiterated by the Supreme Court in case of M.K. Prasad v. P. Arumugam2. 12. In the instant case, undisputedly, the applicants allowed the judgment and decree passed to become final. Nothing has been done for six years, thereafter, moved an application under Section 47 of CPC before the executing court. After its dismissal, proceeded to satisfy the decree and after a period of three years and 77 days, when according to them, the respondent did not cooperate in due execution of decree, the instant revision has been preferred. 13. True it is, the words "sufficient cause" occurring in Section 5 should receive a liberal construction so as to advance substantial justice ' 2001 (6) SCC 176 y^S^5^ 14. n? but at the same time, it is also true that the expression "sufficient cause" cannot be construed too liberal; merely because the party is a government. If the word "sufficient cause" is construed liberally even then it cannot be said that the delay if occurred due to negligence or inaction of a party, or is deliberate, is liable to be condoned. In the instant case, on the face, the applicants failed to demonstrate plausible reasons for condoning the delay in filing the revision; negligence and inaction on their part is apparent on the face of record. Even otherwise, on merits, it appears that, the applicants have no case. In such circumstances, it cannot be said that the applicants have succeeded in explaining the cause of delay in filing the revision. In view of above, the application for condonation of delay in filing the revision, being devoid of substance is liable to be and is hereby rejected. Consequently, the revision stands dismissed. No order asto costs. Sd/- N. K. Agarwal Judge Sahu