IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 29TH SEPTEMBER 2010 / 7TH ASWINA 1932 OP(C).No. 28 of 2010(O) ----------------------- AGAINST THE ORDER DATED 07/07/2010 IN IA.909/2009 IN AS.11/2009 of SUB COURT, KOYILANDY OS NO.36/2005 OF MUNSIFF COURT, PERAMBRA .................... PETITIONER/ RESPONDENT/PLAINTIFF ----------------------------------------------------------------- KOOTHALI SERVICE CO-OPERATIVE BANK LTD. NO.D.2609, POST KOOTHALI-673 532, KOZHIKODE DISTRICT, KERALA STATE. BY ADV. SRI.B.KRISHNAN SRI.R.PARTHASARATHY RESPONDENT(S)/APPELLANTS/DEFENDANTS ---------------------------------------------------------------- 1. VAZHAYIL MEETHAL HYRUNNISSA, D/O.KUNHABDULLA, PERAMBRA AMSOM DESOM, THANDAROPPARA POST, KOYIANDY TALUK, KOZHIKODE DISTRICT, KERALA STATE. 2. KUNHAMMAD,S/O.KUNHAMMADKUTTY, VADAKKEKARACHALIL HOUSE, PERAMBRA AMSOM DESOM, THANDAROPPARA POST, KOYILANDY TALUK, KOZHIKODE DISTRICT, KERALA STATE. 3. K.P.KUNHABDULLA MOULAVI, S/O.MOIDEEN MUDALIYAR, KALAYATHPURATH HOUSE, PERAMBRA AMSOM DESOM, THANDAROPPARA POST, KOYILANDY TALUK, KOZHIKODE DISTRICT, KERALA STATE. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 29/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.28 of 2010 -------------------------------------- Dated this the 29th day of September, 2010. JUDGMENT An exparte decree for money was passed in favour of petitioner in O.S.No.36 of 2005 of the court of learned Munsiff, Perambra 19.06.2007. Respondents filed I.A.No.549 of 2007 to set aside the exparte decree and prosecuted that application on the hope that they will succeed in their effort. But that application was dismissed. Respondents preferred C.M.A.No.4 of 2008 which ended in a dismissal on 15.07.2008. That was followed by a revision under Section 115 of the Code of Civil procedure (for short, “the Code”) which again was dismissed and by order dated 02.04.2009 in S.L.A (Civil) No.3706 of 2009 the Supreme Court refused to interfere with dismissal of the revision. Learning that respondents could not get the exparte decree set aside, they chose to take up the alternative of filing a regular appeal against the exparte decree. They filed A.S.No.11 of 2009 in the court of learned Sub Judge, Koyilandy with I.A.No.909 of 2009 to condone the delay of 118 days from 02.04.2009 (when the Supreme Court dismissed S.L.A.(Civil) No.3706 of 2009) till filing of the appeal. Petitioner objected that application on various grounds including that there is no explanation for the delay from 19.06.2007 till 02.04.2009. Learned Sub Judge was inclined to allow I.A.No.909 of 2009 vide Ext.P4, order dated 07.07.2010 observing that on going through the records learned Sub Judge was of the view that application could be allowed on OP(C) No.28/2010 2 payment of cost of Rs.1,000/-. That order is under challenge. It is contended by learned counsel that there is no explanation for the delay from 19.06.2007 to 02.04.2009 and that there could be no exclusion of that period since it is not a case of respondents prosecuting the appeal in a court which on account of any defect of jurisdiction was unable to entertain that appeal and thereafter the present appeal is presented in the proper forum. Learned counsel has placed reliance on a decision of the Calcutta High Court in M/s.William Jacks & Co. (India) Ltd. v. Smt.Sumitra Sen (AIR 1984 Calcutta 12) where that view is taken. 2. Section 14(2) of the Limitation Act (for short, “the Act”) states that in computing the period of limitation for any application the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature is unable to entertain it. Two things are clear, what was being prosecuted before the trial, appellate and revisional courts and the Supreme Court was an application to set aside the exparte decree and not an appeal from the decree. Nor were those courts on account of any defect of jurisdiction unable to entertain the application to set aside the exparte decree. But, that application was dismissed on merit with jurisdiction. This Court in Samuel OP(C) No.28/2010 3 Joseph v. Ramachandran Chellayyan (1991 (1) KLT 218) has stated that though Sections 5 and 14 are independent and cannot read together, they are not mutually exclusive and that both operate in different areas. The Supreme Court in Shakti Tubes Limited Through Director v. State of Bihar and others [(2009) 1 SCC 786] was considering the application of Section 14 of the Act to a case where appellant had entered an agreement with the Government for supply of certain goods and it filed a Writ Petition in the High Court to direct the Government pay certain amount and later filed a suit for recovery of money. There, question arose whether the period during which appellant was prosecuting Writ Petition in the High Court could be excluded under Section 14(1) of the Act. Question was answered in the affirmative. Yet another decision of the Supreme Court on the point is Kumaradasan Nair v. IRIC Sohan (2009 (1) KLT 874) where it was held that the principles of Section 14(2) of the Act would apply to a case where the party commits a mistake in approaching the appropriate forum. It was held that Sections 5 and 14 of the Act are meant for relief where a person has committed some mistake. Even where Section 14 of the Act per se is not applicable, principles thereof would be applicable for condonation of delay in filing an appeal or revision in terms of Section 5 of the Act. It was further held that Sections 5 and 14 of the Act alike should thus be applied in a broad-based manner. Hence even if OP(C) No.28/2010 4 Section 14 of the Act may not per se apply to the facts, the principle could be applied in considering the request to condone the delay under Section 5 of the Act. 3. In the present case I.A.No.909 of 2009 is filed under Section 5 of the Act requesting to condone the delay from 02.04.2009 till filing of the appeal. Reason for delay from 19.06.2007 to 02.04.2009 is not stated in the affidavit, learned counsel contends. But, it is not as if in the absence of averments in the affidavit, court was powerless to take note of admitted fact. Section 5 of the Act does not contemplate an application for exercise of the power. What is required is the existence of sufficient cause. The exparte decree was passed on 19.06.2007 and within the time stipulated respondents filed I.A.No.549 of 2007 to set aside the exparte decree. That proceedings culminated only on 02.04.2009 and it is thereafter that appeal was filed with delay of 118 days. That fact not being disputed, can be taken into account as affording sufficient cause for not filing the appeal from 19.06.2007 to 02.04.2009. Learned Sub Judge has found on facts and circumstances of the case that this is a fit case where respondents must be allowed to prefer the appeal but ofcourse on terms of cost. It is not as if learned Sub Judge has exercised a power not vested with him or has travelled beyond the power. Nor am I inclined to think on the facts above stated that the power has been exercised arbitrarily or in a perverse OP(C) No.28/2010 5 manner so that, the order calls for interference in exercise of supervisory power of this Court under Article 227 of the Constitution. I find no merit in this Original Petition. Original Petition is dismissed. THOMAS P.JOSEPH, Judge. cks