The High Court · 2025

HON'BLE SRI JUSTICE I( LAKSHMAN CML REVISION PETITION No.3933 OF 2024 ORDER Heard Mr. Tangeda Dayananda Rao, leamed counsel lor the petitioner - Judgment Debtor No.2 and Mrs. S.A.V. Ratnam, leamed counsel for respondent No.l - Decree Holder. Despite service of notice on respondent Nos.2 and 3 - Judgment Debtor Nos.l and 3, there is no representation on their behalf.

2. The petitioner herein filed the present revision challcnging the order dated 08.12.2023 passed by leamed 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.l4 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. I'he petitioner herein is arrayed as judgment debtor No.2, while respondent Nos.2 and 3 are judgment debtor Nos.l and 3 and respondent No.l is decree-holder in E.P. No.14 of 2014. For the sake of convenience, the parties are hereinafter referred to as thcy were arraved in E,.P 2 KL,J CRP No 3931 of2024

4. Respondcnt No.l - Decree Holder filed a:;uit vide O.S. No. 123 of 2005 for recovery of Rs. I .00 lakh along rv rth interest @ . l2%o per annum thereon against the deceased judgment (:ebtor towards hand loan provided by her to the deceased judgment debtor. i) During pendency of the said suit, to protect th,.: suit amount, the decree holder also obtained order of attachment belbre judgment in respect of immovable property bearing [l.No.4-3-3 9, situated at Jammikunta Town and Mandal. ii) Vide judgment and decree, dated 20.09.2013 thc said suit was decreed. iii) As the deceased judgment debtor failed to pay the decretal amount, the decrec-holder filed an execution petition vnrz E.P. No.14 of 2014 for realization of Rs.1.53,928/- against the decea sed judgment debtor. iv) During pendency of the execution petition, the deceased judgment debtor died. v) While so, the aforesaid E.P. was closed or 17.04.2017. Therefore, the decree holder fited a petition vide E.A. No.44 of 2021 r-lqder Section - 5 of the Limitation Act, to condone the ctelay of 1374 ) 3 KL,J CRP No i93i ol202,r 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-I9, 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 ol 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; \ .-t 4 KL,J CRP No 39ll of2024 d) The EP was dismissed much prior to COV D-19 pandamic an<1, therefore, the detay of 1374 days is wrong and in fact, l thc delay would have 1392 days; and e) The execution petition was closed on a )count of non- prosecution of case by the decree-holder in bringing the legal representatives of sole deceased judgmi)nt debtor. vti) Vide order dated 08.12.2023, the trial Corrrt allowed E.A. No.44 of 2021 condoning the detay from 17.05.2017 -o 08.03.2021 in filing the set aside petition observing thus: a) To give an oppornrnity lor the decree-hold,:r to recover the suit amount; b) In the absence of specific provision to cond,one the delay, it is settled law that the party cai opt for filir g petition under Section - 5 of the Limitation Act to condore the delay and, therefore, there is no bar in filing such petiti )n; c) Mere wrong mention of delay period canno be a ground for dismissal of the petition; d) If the petition is not allowed, serious pre udice would be -,2 caused to lhe decree-holder as it is a monev lecrce: 5 KL,J CRP No l9l3 of2021 e) The contention ol the judgment debtors that they are not numbered correctly cannot be considered for the reasons that the procedure is handmaiden ofjustice and of such technical grounds are to be considered, serious injustice would be caused to the decree-holder.

5. Challenging the said order, judgment debtor No.2 filed the present revision contending as follows: i) The trial Court erred in allowing the petition; iD Despite not producing any documentary evidence to condone such inordinate delay, the trial Court erred in condoning the delay; and iii) The trial Court did not consider the computation of improper delay.

6. Whereas, Mrs. S.A.V. Ratnam, leamed counsel for respondent No.l - decree holder, would contend that leamed Executing Court considered alt the contentions raised by judgment debtor No.2 and allowed E.A. No.44 of 2021 condoning the delay of 1374 days in filing an application seeking restoration of E.P. No.14 of l I 'i 6 KL,J CRP No l9ll of2024 .1.. 2014 dismissed for default on 17 .04.2017 , vide order dated

08.12.2023. There is no error in it

7. The aforesaid rival submissions would reveal '.hat the decree holder filed a suit in O.S. No.l23 of 2005 against dece rsed judgment debtor for recovery of Rs. I .00 lakh along with interest. The same was decreed on 20.09.2013. lt is relevant to note that during pendency of the said suit, decree-holder had obtained order of atta;;hment before judgment to secure the suit amount. The deceased jurlgment debtor did not prefer any appeal challenging the said judgmcnt and decree dated20.09.2013 passed in O.S. No.l23 of 2005 and sc also his legal heirs i.e., judgment debtor Nos.1 to 3. Therefore, the ;aid judgment and decree attained finality

8. The decree holder had filed an execution petrtion vide F^P. No.14 of2014 against the deceased judgment debtor for realization of the decretal amount. The said EP was closed on 17.04.2017 by leamed Executing Court on the ground that neith,:r there was representation on behalf of decree holder, nor the decr( e holder took steps to bring the legal heirs of deceased judgment debtor on record. Thereafter, the decree holder filed an application under Section - 5 of the Limitation Acl, vide E.A. No.44 of 2021 ro condon : the delav of 7 KL.J CRP No l9ll o12024 ( 1374 days in filing an application to set aside the dismissal order dated

17.04.2017 and to restore the EP to its original stage. She has narrated the aforesaid reasons, more particularly the reason that her father fell ill and her counsel also sulfered from COVID- 19 pandemic and, therefore, she could not take steps to bring the legal heirs of deceased judgment debtor on record immediately. Thus, there was delay in filing the application to restore the execution petition to its original

9. The said application was opposed by judgment debtors contending that the application under Section - 5 of the Limitation Act is not applicable to the execution petition and the delay was not calculated and not explained properly. Cause title was improperly framed. The decree holder sought two reliefs in one application

10. Vide impugned order dated 08.12.2023,leamed Executing Court considered all the said aspects and condoned the delay of 1374 days in filing the application to restore the EP to its original stage. It is relevant to note that judgment debtor No.2 had filed an interlocutory application vide E.A. No.33 of 2024 in E.A. No.44 of 2021 in E.P. No.14 of 2014 on 18.04.2024, to condone the delay of 43 days in fling 8 KL,J CRP No l9l3 of2024 application to review the order dated 08.12.2023 of 'he Executing Court in E.A. No.44 of 2021 . Vide order dated 19. I I 2024. leamed Executing Court dismissed the said E.A. No.33 of 20.'.4. Judgment debtor No.2 did not challenge the said order dated 19.1 .2024. Thus, it attained finalify.

11. Vide order dated 04.04.2025, this Court call:d for original record in the said E.P. from the Executing Court anrl verified the same. It is apt to note that it appears that the decree hokler did not file any application separately to bring the legal heirs of deceased judgment debtor on record. However, she filed an app lication under Order - XXI, Rule 106 of CPC vide E.A. No.180 of 2023 on

03.03.2021 to set aside ex parte order dated 17 .04.2017 rnd to give an opportunity to her for recovery of decretal amount from lhe legal heirs of the deceased judgment debtor, and the same was returned on

31.03.2021 for not filing delay petition. Therefore, the decree holder filed application vide E.A. No.44 of 2021 tnder Sectron - 5 of the Limitation Act and the same was allowed vide orclcr 08.12.2023 Challenging the same, judgment debtor No.2 filec the present revlston. -,, 9 KI,.J CRP No 39li o1202-1

12. As rightly held by leamed Executing Court that the decree holder filed E.A. No.44 of 2021 ro condone the delay in filing the application to restore the EP to its original position, there are no two prayers. The contention of leamed counsel lor judgment debtor No.2 that the Limitation Act is not applicabte to the execution petitions is also untenable. A party cannot be remediless. Limitation Act is applicable even to execution petitions. l'he contention of judgment debtor No.2 that the decree holder did not compute the delay properly is also untenable. The office of leamed Executing Court on satisling with the delay shown by the decree holder, entertained the said application. Therefore, the judgment debtor No.2 cannot contend that the decree holder did not compute/calculate the delay properly. The leamed Executing Court considered the said conLention and gave a specific finding that the delay was property calculated/computed.

13. With regard to the contention ofjudgment debtor No.2 that the decree holder failed to explain the delay in filing the application to restore the EP is concemed, she has specifically stated the reasons i.e., illness of her father and her counsel also suffered from Covid-l9 pandemic and, therefore, she could not take for filing the application 1 ..| l0 KL.J CRP No l9l3 of202'l to restore the E.P. in its original stage by bringing the le1,1a[ heirs of the deceased judgment debtor on record immediately.

14. As discussed above, E.A. No.33 of 2024 fileJ by judgment debtor No.2 to condone the delay in filing the applica tion to review the order dated 08.12.2023 passed in E.A. No.44 of 2021 was dismissed vide order dated 19.11.2024. There is no clrallenge to the same. The judgment and decree obtained by the decree holder is a judgment and decree for recovery of money. She has also obtained protection order of attachment before judgment in he suit itself. There is no challenge to the same. Even there is no clrallenge to the judgment and decree daled20.09.2013 in O.S. No.l23 of 2005 either by the deceased judgment debtor or his legal heirs. It al taincd finaliry. Therefore, judgment debtor No.2 cannot oppose the aJ'plication filed by the decree holder to condone the delay in filing he petition to restore the EP to its original position on techn calities. On consideration of the said aspects only, vide order dafu:d 08.12.2023, Ieamed Executing Court condoned the delay of 1374 days in filing the application to set aside the dismissal order dated ll .(t4.2017 and to restore the EP to its original stage. It is a rcasoned orcler and there is no jggi*dictional error. The petitioner - judgment debtor No.2 failed to _!:;iF::-.-. 'r. :_, - KI..J CRP No l9il of2014 make out any case to interfere with the impugned order. Thus, the present revision fails and the samc is liable to be dismissed.

15. The present Civil Revision Petition is accordingly dismissed. In the circumstances of the case. there shall be no order as to costs As a sequel thereto, miscellaneous petitions, if any, pending in the revision shall stand closed. Sd/. P. PAOMANABHA REDDY DEPUW REGISTRAR I I I To, //TRUECOPY/I { -- SECTION OFFICER i

1. The Principal Junior Civil Judge -cum-Judiciat Magistrate of First Class at Huzurabad.

2. One CC to SRl. TANGEDA DAYANANDA RAO, Advocate [OPUC] 3. One CC to M/s. S. A. V. RATNAM, Advocate IOPUC] 4. Two CD Copies kul/PSL HIGH COURT DATED:2210412025 ORDER CRP.No.3933 ot 2024 I <=a= vi L. 1 .+ /\ o/_ ( ( Cli ) 11 JUN 2025 /lI { OSS.,n r ./ .r/ -:/ DISMISSTNG']-HE CIVIL REVISION PETITION WITHOIJT COSTS q 6 \s{