COMMON ORDER:

C.R.P(Sr).No.9967 of 2014 is filed questioning the order dated 09.10.2012 passed in I.A.No.1 of 2011 in A.S.No.23 of 2001 by the Principal Senior Civil Judge, Rajampet, Kadapa District in dismissing the I.A., to restore the appeal by setting aside the dismissal order dated 27.01. 2011.

2. C.R.P.No.3209 of 2015 was filed questioning the order dated 27.07.2015 in E.P.No.27 of 2014 in O.S.No.244 of 1999 passed by the Junior Civil Judge, Nandaluru rejecting the plea of bar of limitation urged by the petitioner/judgment debtor.

3. Petitioner is the judgment debtor. Respondents filed O.S.No.244 of 1999 seeking relief of declaration of title over A, B, C-1 and D-1 property shown in the plaint plan and to direct the defendants to remove the encroached portion A,B,C-1 and D-1 by way of mandatory injunction and also deliver vacant possession of the same. Further, the defendants were sought to be restrained by way of permanent injunction without making any further construction in C-1 and D-1 wall. The said suit was decreed on 13.03.2001. Petitioner/judgment debtor filed A.S.No.23 of 2001 before Senior Civil Judge, Rajampet on 24.04.2001. During the pendency of the appeal, the decree holder died on 28.06.2006 and their legal heirs were added in the appeal vide order dated 29.08.2006 in I.A.No.702 of 2006. A.S.No.23 of 2001 was dismissed for default on 27.01.2011. Petitioner/judgment debtor filed restoration petition i.e. I.A.No.1 of 2011 and the same was dismissed. Questioning the same, the petitioner file the present CRP (SR) along with an application to condone the delay of 434 days in filling the same.

4. Respondents filed E.P.No.27 of 2014 on 04.02.2014 before the Junior Civil Judge, Nandaluru for execution of the judgment and decree in O.S.No.244 of 1999 in view of the dismissal of the appeal for default and the consequential dismissal of I.A.No.1 of

2011 for restoration.

5. In the E.P., the petitioner/judgment debtor filed counter contending that the E.P is barred by limitation as there was no stay during the pendency of the appeal. The further plea was that since the appeal was dismissed for default, there is no merger of the order of the trial Court in the appellate Court and as such, the limitation for execution is the date of judgment and decree of the trial court. The said objections were overruled by the trial Court and hence, the present revision.

6. Heard Sri V.Roopesh Kumar Reddy, learned counsel for the petitioner and Sri T.Lakshmi Narayana and Sri Balaji Medamalli, learned counsel for the respondents.

7. Learned counsel for the petitioner had sought for withdrawal of C.R.P (SR).No.9967 of 2014 and a letter to that effect was submitted in the Registry on 29.08.2023 along with letter of the petitioner. This request for withdrawal was opposed on the ground that the petitioner is trying to take advantage of the dismissal of the appeal to bolster his plea that the E.P is barred by limitation, but this objection cannot be sustained as this Court cannot compel the appellant to argue the appeal on merits or pass order on merits in view of Explanation to Order 41 Rule 17 C.P.C.

8. Therefore, this Court is over ruling the objection urged by the learned counsel for the respondents and the CRP is dismissed as withdrawn.

9. Coming to C.R.P.No.3209 of 2015, the issue that falls for consideration is whether the pendency of appeal i.e. from 24.04.2001 i.e. date of filing till dismissal for default on 27.01.2011 be excluded for the purpose of computation of limitation?

10. Learned counsel for the petitioner cited on the following judgments:

1. Ratan Singh v. Vijay Singh1

2. Chandi Prasad v. Jagadish Prasad2

3. Manohar Shankar Nale v. Jaipalsing3

4. Ram Bachan Rai v. Ram Udar Rai4

5. Neela Chinna v. Gangadharan Pillai5

1 2001 (1) SCC 469 2 2004 (8) SCC 724

3 2008 (1) KerLT 832

4 2006 (9) SCC 446

5 2011 Lawsuit (Ker) 1702

11. Learned counsel for the respondents relied on Union of India and others v. West Coast Paper Mills Ltd., and another6

12. I