IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Revision No.1736 of 2007 Ramadhar Prasad Versus Radhika Devi & Ors ---------------------------------- 15. 07.12.2011 Heard the learned counsel appearing on behalf of the petitioner and learned counsel appearing on behalf of the opposite party no.1. I.A.No.4761/07 This interlocutory application has been filed for condonation of delay in filing this revision application. This revision application has been filed assailing the order dated 08.05.2003 passed by Sub Judge III, Gopalganj in Execution Case No.03/99 rejecting the objection to the effect that the execution case was barred by limitation as provided in Article 136 of the Limitation Act. However, this revision application has been filed on 21.08.2007 after the delay of more than four years. In the interlocutory application (limitation petition), the petitioner has stated that he has been residing with his family at Faridabad in Haryana and has a job there and comes to his village at the gap of 4 & 5 years. It has been further stated that he had assigned the pairvi of the case to his Pairvikar in whom he had complete faith. But 2 on 04.08.2007 his neighbour had informed him that some order had been passed in his case and his Pairvikar had not been taking interest in the case. The petitioner has further stated that on getting this information he immediately rushed back to his home, got the information and found that his pairvikar had been in collusion with the opposite party and had not conducted the case fairly. On these grounds, the petitioner has submitted that sufficient cause is there to condone the delay in filing this revision application. A counter affidavit to this interlocutory application has been filed on behalf of the opposite party no.1 wherein it has been asserted that originally Bankey Prasad was the defendant in the suit for partition but he had been substituted by his three sons one of whom is the petitioner. It has been further stated in the counter affidavit that the petitioner had not filed the objection raising the plea of limitation in the execution case rather the same had been filed by his brothers namely Bishwanath Prasad and Awadhnath Prasad and on their objection the order dated 08.05.2003 had been passed holding that the execution case was not barred by limitation. It has been further stated 3 that the objectors, who were the two brothers of the petitioner, thereafter several times took adjournment in the execution case on the pretext of filing a civil revision application before this Hon’ble Court against the order dated 08.05.2003. But ultimately by order dated 03.07.03 the court below had refused further adjournment in the execution case and had passed the order for proceeding further. The order sheet of the execution case has also been annexed with the counter affidavit. The opposite party no.1 has further stated that the same objection regarding the bar of limitation of the execution case was again raised by filing a petition on 11.11.05 in the execution case but the same was rejected by the order dated 18.04.2006 by the Executing Court. The two brothers of the petitioner alongwith other persons had then filed C.R.No.1009/06 before this Court but the same had been dismissed by order dated 05.11.07. A supplementary counter affidavit has also been filed by the opposite party no. 1 wherein also the order sheet of the partition suit no.24/77 at the stage of preparation of final decree had been annexed. On the basis of these averments the contention on behalf of the opposite party no.1 is that the explanation furnished by the 4 petitioner in the limitation petition is not bona fide and the intention to harass the opposite party and delay the execution case is explicit and as such there is no sufficient cause for condoning the delay in filing the revision application. After hearing the parties and considering the statements made in the interlocutory application as well as in the counter affidavit and supplementary counter affidavit it appears that the execution proceeding has arisen out of a partition suit in which the final decree has already been passed and the execution case has been filed for execution of the final decree. The petitioner, who is one of the judgment debtors alongwith his brothers in that final decree has filed this revision application against the order dated 08.05.03 passed in the execution case rejecting the objection to the maintainability of the execution case on the ground of bar of limitation. From the facts brought on the record in the counter affidavit it is clear that the objection with regard to limitation had been raised in the execution proceeding by the two brothers of the petitioner and not by the petitioner. After rejection of their objection they had also made prayer before the Executing Court for 5 adjournment on the pretext of challenging the order before this Court by filing revision application but they chose not to challenge the said order. Thereafter it appears that the same issue was again raked up by the judgment debtors including the two brothers of the petitioner and the executing court had again rejected the objection inter alia holding that the said issue had already been decided earlier. This time the order rejecting the objection was challenged before this Court by filing civil revision application which had been dismissed. In this interlocutory application the petitioner has nowhere stated that his bothers had chosen to keep the petitioner in dark about the orders rejecting the objection with regard to limitation by the executing court. There is also no statement that the petitioner had no knowledge regarding the same objection repeatedly having been raised by his two brothers unsuccessfully in the execution proceeding and dismissal of the civil revision application by this Court in that regard. It is not the case of the petitioner that he is separate from his brothers and is not keeping good terms with them. Rather from the facts brought on the record and not denied by the petitioner it is 6 clear that the petitioner has been substituted in the proceeding alongwith his two brothers after the death of his father Bankey Prasad. It also does not appeal to reason as to why the petitioner has suddenly woken up and taken upon himself the burden of pursuing the objection raised by his brothers four years ago unsuccessfully. The only explanation which the petitioner has given is that he has been residing at Faridabad with his family and comes back to his village only after a gap of 4 & 5 years and his Pairvikar has deceived him. In the background of these facts and circumstances, the explanation as given by the petitioner does not appear to be bona fide and genuine. Learned counsel appearing on behalf of the petitioner has submitted that the prayer for condonation of delay should be liberally construed and meritorious matter should not be thrown out on the ground of bar of limitation. It has been further urged by the learned counsel that in view of the principle of law well settled by the apex court, the learned court below was clearly in error in rejecting the objection regarding the bar of limitation. No doubt the prayer for condonation of delay is to be considered liberally but simultaneously it is also to be kept 7 in mind that “Limitation is a statute of repose”(see- 2009(2)PLJR, S.C. 168). The bona fides of the party praying for condonation of delay is also to be taken into account. The proceeding of the partition suit, filed in the year 1977, is yet to be completed by carrying the execution case of the year 1999 to finality. The repeated failed attempts by the brothers of the petitioner and thereafter of the petitioner for forestalling the proceeding of the execution case are writ large from the records of this case. In view of the foregoing discussions, I do not find that the petitioner has succeeded in satisfactorily explaining the delay in filing this revision application. The interlocutory application for condonation of delay is therefore dismissed. In view of the dismissal of the prayer for condonation of delay, the revision application is, accordingly, dismissed. Nitesh ( V. Nath, J.)