@JUDGMENTTAG-ORDER
K. Sreedhar Rao, J.@mdashThe application to implead the applicant as third respondent in I.A. No. IV/2006 is allowed. Cause title to be amended.
2. The third respondent claims to be the auction purchaser of the property. The appellant, however contended that the second respondent is the auction purchaser. This controversy is not germane and has no bearing on the application for condonation of delay under consideration.
3. The third respondent claims to be the purchaser of the property in court auction and a sale certificate is issued in his favour. The third respondent claims to have taken effective legal possession of the property and put up compound wall without recourse to the provisions of Order XXI Rule 95.
4. The appellant per contra contends that the court is the custodian of the property, without formal proof of delivery of possession under Order XXI Rule 95, the third respondent cannot claim effective legal possession.
5. Learned Counsel for the third respondent stoutly opposed the application filed u/s 5 of the Limitation Act for condonation of delay in filing the appeal and argued that Section 5 does not apply to appeals arising out of the orders passed in execution proceedings. Therefore, the application is liable to he dismissed, In this regard, he relied on the decision of the Andhra Pradesh High Court in
6. Nextly, it is argued that the appellant imprudently filed a writ petition. The maintainability of writ petition was objected. The appellant did not withdraw the writ petition at the earliest and it is after five months, the writ petition was withdrawn and the appeal is filed. Therefore, time spent for prosecuting the writ petition cannot be offered as an excuse for condonation of delay.
7. Counsel for the appellant relied on the decision of Delhi High Court in Mahesh Chandra v. Smt. Darshan kaur reported in AIR 1982 NOC 69 to contend that the bar u/s 5 of the Limitation Act does not apply to appeals arising out of the orders passed under Order XXI of Code of Civil Procedure.
8. In the decision of Andhra Pradesh High Court, the judgment debtor filed an application for review of the order before the
9. Executing Court. The application was dismissed. Against the said order an appeal was filed. In the context of the said facts, Andhra Pradesh High Court held that bar u/s 5 is not limited to the application filed under Order XXI, but also apply to the offshoot proceedings including the appeals against the order passed under Order XXI of C P C. The decision of the Delhi High Court otherwise holds that the embargo of Section 5 does not apply to the appeals arising of the orders passed under Order XXI.
10. A plain reading of provision of Section 5 of Limitation Act declares that the benefit of condonation of delay for sufficient cause does not apply to the applications filed under Order XXI CPC. There is no specific reference to appeals filed against such orders. The amended code of Code of Civil Procedure, 1976 brought about certain radical reforms which includes giving finality to the proceedings arising out of the orders passed under Order XXI Rule 97 of CPC. The party aggrieved by the result of the order has no right to file a separate suit as was done under the earlier law. The enquiry is not a summary enquiry. The Executing Court has jurisdiction to decide the questions of title in an enquiry under Order XXI Rule 97 and the final order passed has the effect of decree and it is appealable.
11. The Supreme Court in the case of
12. Keeping in view the broad and liberal interpretation of the purpose of Limitation Act laid down by the Hon''ble Supreme Court and the amended provisions of CPC 1976, I am of the view that the provisions of Section 5 of the Limitation Act have to be read in strict sense. The liberal interpretation of denying benefit of Section 5 to the appeals against the orders passed under order XXI should be avoided. Besides, the provisions of Section 5 does not specifically deny the benefit to the appeals filed against the orders passed under Order XXI CPC. In that view, I hold that the application u/s 5 of the Limitation Act is maintainable.
13. The contention that the appellant did not immediately withdrew the writ petition after objections were filed and therefore, there is laches on the part of the appellant is untenable. Infact, this Court while allowing the appellant to withdraw the writ petition has granted liberty to file an appeal. The writ petition was withdrawn after some amount of hearing. Therefore, it cannot be said that filing of the writ petition cannot be pleaded as excuse for condonation. Hence, the time spent in writ proceedings have to be considered as sufficient cause for condonation of delay. Accordingly, I.A. II/2006 is allowed and delay condoned.
14. I.A. No. I/2006 for dispensation is allowed.
