HON’BLE SRI JUSTICE K. LAKSHMAN CIVIL REVISION PETITION No.3933 OF 2024

ORDER

Heard Mr. Tangeda Dayananda Rao, learned counsel for the petitioner - Judgment Debtor No.2 and Mrs. S.A.V. Ratnam, learned counsel for respondent No.1 - Decree Holder. Despite service of notice on respondent Nos.2 and 3 - Judgment Debtor Nos.1 and 3, there is no representation on their behalf.

2. The petitioner herein filed the present revision challenging the order dated 08.12.2023 passed by learned Principal Junior Civil Judge-cum-Judicial Magistrate of First Class at Huzurabad (for short ‘Executing Court’) in E.A. No.44 of 2021 in E.P. No.14 of 2014, whereby and whereunder the trial Court condoned delay of 1374 days in filing an application for setting aside the dismissal order dated

17.04.2017 and to restore the EP to its original number.

3. The petitioner herein is arrayed as judgment debtor No.2, while respondent Nos.2 and 3 are judgment debtor Nos.1 and 3 and respondent No.1 is decree-holder in E.P. No.14 of 2014. For the sake of convenience, the parties are hereinafter referred to as they were arrayed in E.P.

4. Respondent No.1 - Decree Holder filed a suit vide O.S.

No.123 of 2005 for recovery of Rs.1.00 lakh along with interest @ 12% per annum thereon against the deceased judgment debtor towards hand loan provided by her to the deceased judgment debtor.

i) During pendency of the said suit, to protect the suit amount, the decree holder also obtained order of attachment before judgment in respect of immovable property bearing H.No.4-3-39, situated at Jammikunta Town and Mandal.

ii) Vide judgment and decree, dated 20.09.2013, the said suit was decreed.

iii) As the deceased judgment debtor failed to pay the decretal amount, the decree-holder filed an execution petition vide E.P. No.14 of 2014 for realization of Rs.1,53,928/- against the deceased judgment debtor.

iv) During pendency of the execution petition, the deceased judgment debtor died.

v) While so, the aforesaid E.P. was closed on 17.04.2017.

Therefore, the decree holder filed a petition vide E.A. No.44 of 2021 under Section - 5 of the Limitation Act, to condone the delay of 1374 days in filing an application for setting aside the dismissal order dated 17.04.2017 and to restore the EP to its original stage, on the following grounds:

a) Due to ill-health of her father;

b) Her counsel also suffered from COVID-19, a pandemic;

c) Therefore, she could not take steps for bringing the legal representatives of the deceased judgment debtor on record;

d) Due to the said reasons, she could not enquire the stage of EP.; and e) Therefore, the aforesaid delay was caused.

vi) The judgment debtors filed counter opposing the said application by contending as follows:

a) The Limitation Act has no application to the execution proceedings;

b) Cause title of the petition is improperly framed which is contrary to Rules - 9 and 29 of Civil Rules of Practice;

c) The decree holder failed to show as to how she is dependant on her father and there is no specific ill-health said to have suffered by her father;

d) The EP was dismissed much prior to COVID-19 pandamic and, therefore, the delay of 1374 days is wrong and in fact, the delay would have 1392 days; and e) The execution petition was closed on account of non-

prosecution of case by the decree-holder in bringing the legal representatives of sole deceased judgment debtor.

vii) Vide order dated 08.12.2023, the trial Court allowed E.A.

No.44 of 2021 condoning the delay from 17.05.2017 to 08.03.2021 in filing the set aside petition observing thus:

a) To give an opportunity for the decree-holder to recover the suit amount;

b) In the absence of specific provision to condone the delay, it is settled law that the party can opt for filing petition under Section - 5 of the Limitation Act to condone the delay and, therefore, there is no bar in filing such petition;

c) Mere wrong mention of delay period cannot be a ground for dismissal of the petition;

d) If the petition is not allowed, serious prej