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REPORTABLE

                           IN THE SUPREME COURT OF INDIA   CIVIL APPELLATE JURISDICTION

Civil Appeal No. 2677 of 2013 (Arising out of Special Leave Petition (Civil) No. 27910 of 2012)

Amalendu Kumar Bera & Ors. ….   Appellants

Vs.

The State of West Bengal .                …..Respondent

J U D G M E N T

M.Y. EQBAL, J.

Leave granted.

2. Aggrieved by the order dated 22nd March, 2012 passed by  

the Calcutta High Court in C.O.  No. 602 of 2012, the petitioner-decree-

holder preferred this appeal.  The High Court in exercise of power under  

Article 227 of the Constitution of India had refused to interfere with the  

order passed by the District Judge, Purba, Medinipur  in Civil Revision  

No.1 of 2011, condoning the delay in filing the Revision Petition.

3. Although  the  Courts  have  always  exercised  discretion  in  

favour of the person seeking condonation of delay in filing the appeal or  

revision, but in the facts and circumstances of this case, whether the

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District Judge was justified in condoning the delay occurred in filing the  

revision petition?

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  

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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  

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rejected  the  said  petition  by  order  dated  15.9.2011.   For  better  

appreciation, the order dated 15.9.2011 is reproduced herein-below:-

“The record is put up for petition filed by the Jdr.  Who also files a petition under Section 47 of C.P.C.  for setting aside the decree passed by the Court in  T.S. 483/1967 along with a petition for recalling the  writ of execution. Copy served and objected to:

It manifest from the record that decree in T.S.  483/67  was  passed  on  7.8.1969.  Apparently,  an  appeal  was  preferred  by  the  defendants/state  against  such judgment  and decree,  but  the same  was also dismissed.

Eventually, the decree holder files the instant  executing  case  for  executing  decree  so obtained,  after  taking fresh steps upon the JDR. JDR/State  appeared  and  files  a  w/o  against  the  instant  executing  case  on  6.4.2010  and  the  same  was  registered  as  J.  Miscellaneous  No.18/2010  under  Section 47 of C.P.C.  Upon contested hearing of the  J. Miscellaneous case, this Court by way of order  No.18  dated  17.8.2010  rejected  the  J.  Miscellaneous case on contest observing inter alia  that the said objection under Section 47 of C.P.C. is  a fulfill  attempt by the State of  W.B.  to delay the  executing proceeding of the decree holder.   

Thereafter,  the decree holder  took steps for  executing  of  the  decree  passed on  7.8.1969 and  then in course of the time.  Writ of Attachment of  moveable  property  under  order  21  Rule  30  CPC  was  issued,  and  the  date  has  been  fixed  on  20.09.2011 for return of such writ upon execution.

Now, the JDR/State  has filed fresh petition  under Section 47 of C.P.C. along with a prayer for  recall writ of attachment.  However, since the state  had  already  instituted  an  objection  case  under  Section  47  of  C.P.C.  and  the  same  has  already  

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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.   That the petition dated 15.9.2011 for recall of writ of  attachment , issued on 20.08.2011 is consequently  rejected. To date.”  

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.

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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.

9.  We  have  heard  the  learned  counsel  appearing  for  the  

appellant and the learned counsel appearing for the Respondent-State.  

There  is  no  dispute  that  the  expression  ‘sufficient  cause’  should  be  

considered with pragmatism in justice oriented approach rather than the  

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technical  detection of  ‘sufficient  cause’  for  the explaining every days’  

delay.  However, it is equally well settled that the Courts albeit liberally  

considered the prayer for condonation of delay but in some cases the  

Court may refuse to condone the delay in as much as the Government is  

not accepted to keep watch whether the contesting respondent further  

put  the  matter  in  motion.   The delay  in  official  business  requires its  

pedantic approach from public justice perspective.  In a recent decision  

in the case of  Union of India  vs. Nirpen Sharma AIR 2011 SC 1237  

the  matter  came  up  against  the  order  passed  by  the  High  Court  

condoning the delay in filing the appeal by the appellant-Union of India.  

The High Court refused to condone the delay on the ground that the  

appellant-Union  of  India  took  their  own  sweet  time  to  reach  the  

conclusion whether the judgment should be appealed or not. The High  

Court   also  expressed  its  anguish  and  distress,  the  way  the  State  

conduct the cases regularly in filing the appeal after the same became  

operational and barred by limitation.      

10. In  the  instant  case  as  noticed  above,  admittedly  earlier  

objection filed by the Respondent-State under Section 47 of the Code  

was dismissed on 17.8.2010.  Instead of challenging the said order the  

Respondent-State  after  about  one  year  filed  another  objection  on  

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15.9.2011 under Section 47 of the Code which was finally rejected by  

the executing court.  It was only after a writ of attachment was issued by  

the executing court the respondent preferred civil  revision against the  

first order dated 17.8.2010 along with a petition for condonation of delay.  

Curiously enough in the application for condonation of delay no sufficient  

cause has been shown which entitle the respondent to get a favourable  

order for condonation of delay.  True it is, that courts should always take  

liberal approach in the matter of condonation of delay, particularly when  

the appellant is the State but in a case where there is serious laches and  

negligence on the part of the State in challenging the decree passed in  

the suit and affirmed in appeal, the State cannot be allowed to wait to file  

objection  under  Section  47  till  the  decree  holder  puts  the  decree  in  

execution.  As noticed above, the decree passed in the year 1967 was in  

respect of declaration of title and permanent injunction restraining the  

Respondent-State  from  interfering  with  the  possession  of  the  suit  

property of the plaintiff-appellant.  It is evident that when the State tried  

to interfere with possession the decree holder had no alternative but to  

levy  the  execution  case  for  execution  of  the  decree  with  regard  to  

interference  with  possession.   In  our  opinion  their  delay  in  filing  the  

execution case cannot be a ground to condone the delay in filing the  

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revision against the order refusing to entertain objection under Section  

47 CPC. This aspect of the matter has not been considered by the High  

Court while deciding petition for condoning the delay.  Merely because  

the Respondent is the State, delay in filing the appeal or revision cannot  

and shall not be mechanically considered and in absence of ‘sufficient  

cause’ delay shall not be condoned.   

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.

…………………………..J (Surinder Singh Nijjar)

………………………….J. (M.Y. Eqbal)

New Delhi March 22, 2013

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