Amalendu Kumar Bera & Ors vs The State Of West Bengal

4. The facts of the case lie in the narrow compass.

5. The plaintiff- appellant filed a suit in the year 1967 being Title Suit No.483 of 1967 for declaration of title in respect of the suit property and also for a decree for permanent injunction restraining the Respondent-State from interfering with the possession of the suit property. The suit was contested by the Respondent- State of West Bengal by filing written statement. The Trial court passed a contested decree in favour of the appellant in respect of the suit property in terms of judgment and decree dated 7.8.1969. Dissatisfied with the judgment and decree the Respondent – State filed an appeal being Title Appeal No.653 of 1969. The appeal was finally heard and dismissed by the Additional District Judge, 1st Court Midnapore on 13.8.1970. No further appeal or revision was filed by the Respondent-State. The appellant-decree holder then put the decree in execution by levying execution case No.27 of 2009. In the said execution case, the respondent state filed objection under Section 47 of the Code of Civil Procedure, which was converted into miscellaneous case No.18 of 2010. The objection inter-alia was that the execution case is barred by law of limitation and that the suit land is a Khasmahal land of the Government. The petitioner decree holder has no right title and interest in the suit property. It was further stated that the judgment and decree passed in the suit is without jurisdiction and is a nullity. The executing court by reasoned order dated 17.8.2010 dismissed the objection petition. By the said order passed in Miscellaneous Case No.18 of 2010 the Court held that the judgment and decree attained finality and the decree-holder who is pursuing the litigation since 1967 should not be deprived of from the fruit of the decree. The executing court further held that the objection under Section 47, C.P.C. challenging executability the decree is a futile attempt by the State to delay the execution proceedings of the decree holder.

6. After the dismissal of the objection filed by the respondent- State, the executing Court proceeded with the Execution Proceedings and steps were taken for issuance of writ of attachment of moveable property of the judgment debtor-state. In the meantime, the respondent State filed another objection on 15.9.2011 under Section 47 CPC for setting aside the decree passed in the suit and also for recall of the writ of attachment. The executing court after hearing the respondent-State rejected the said petition by order dated 15.9.2011. For better appreciation, the order dated 15.9.2011 is reproduced herein-below:-

7. After the said objection under Section 47 was rejected on 15.9.2011, the Respondent-State filed a Civil Revision before the District Judge challenging the earlier order dated 17.8.2010, whereby the objection under Section 47 C.P.C. in miscellaneous case No.18 of 2010 was dismissed. Along with the said revision petition, a separate application under Section 5 of the Limitation Act was filed for condonation of delay in filing the revision petition. The learned District Judge stayed the operation of the order dated 17.8.2010 on the ground that the interest of the State will be adversely affected and the very object of the filing the revision petition will be frustrated. The said stay order was passed on 2.11.2011.

8. On 3.2.2011, the Limitation Petition filed by the respondent under Section 5 of the Limitation Act for condoning the delay in filing the Revision Petition was taken up for hearing. Although, the District Judge in its order dated 3.2.2012 noticed that the Courts do not have unlimited and unbridled discretionary powers to condone the delay and the discretion has to be exercised within reasonable bounds, known to law. Even then the Court allowed the Limitation Petition and condoned the delay in filing the revision Petition. Aggrieved by the said order the appellant-decree holder moved the Calcutta High Court by filing a revision petition being C.O. No.602 of 2012. The High Court by impugned order dated 23.3.2012 dismissed the revision petition on the ground inter- alia that a liberal attitude should be adopted in the matter of condonation of delay when there is no gross negligence or deliberate inaction or lack of bona-fide on the part of the State. Hence, this appeal by the appellant-decree holder challenging the aforesaid order passed by the High Court in Revision Petition.

However, since the state had already instituted an objection case under Section 47 of C.P.C. and the same has already been disposed of and there present petition under Section 47 of C.P.C. is misconceived and liable to be rejected. Consequently, the petition for recall of writ is also misconceived and liable to be rejected.” Hence, it is Ordered That the petition under section 47 of C.P.C. dated 15.9.2011 is considered and rejected.

11. For the aforesaid reasons we do not find any justification in condoning the delay in filing the revision petition. This appeal is, therefore, allowed and the impugned order passed by the High Court is set aside. Consequently, petition for condonation of delay in filing the revision petition stands rejected.