IMPORTANT POINT
Exercise of jurisdiction u/s 5, Limitation Act.

JUDGMENT :

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 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 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:-

“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 ap