Order XXI Rule 58 CPC | Affidavit in Restoration Petition Suffices for Delay Condonation Without Separate Section 5 Limitation Act Application : Andhra Pradesh HC

The Andhra Pradesh High Court has clarified a critical procedural question: whether a separate application under Section 5 of the Limitation Act, 1963 is necessary to condone delay when the affidavit filed in support of a restoration petition already explains the reasons for delay. The Court held that hypertechnical requirements cannot override substantive justice, especially when the affidavit sufficiently demonstrates the cause of delay and the application is filed within the prescribed period from the date of knowledge.

Background & Facts

The Dispute

The dispute arises from a civil suit filed by respondent No. 1 (decree holder) against respondent No. 2 (judgment debtor) for recovery of an amount. The suit was decreed on 02.04.2007, and the decree holder initiated execution proceedings (E.P. No. 4 of 2017) under Order XXI Rules 54, 64, and 66 of the Code of Civil Procedure, 1908 (CPC) for attachment and sale of the schedule property.

Key Facts

• The petitioner, Bodda Kayala Bhaskara Rao, claimed absolute ownership of the schedule property and filed E.A. No. 14 of 2020 under Order XXI Rule 58 read with Section 151 CPC to declare his title.
• E.A. No. 14 of 2020 was dismissed for default on 29.07.2022 due to non-compliance with procedural steps.
• The petitioner’s counsel died on 23.04.2021 due to Covid-19, and the petitioner could only retrieve the case file from the counsel’s family in the last week of September 2022.
• The petitioner engaged new counsel in the first week of October 2022, who discovered the dismissal of E.A. No. 14 of 2020 on 14.10.2022.
• The petitioner filed E.A. No. 51 of 2022 on 29.10.2022 under Order XIX Rule 1 CPC to set aside the default order and restore E.A. No. 14 of 2020.
• The executing court dismissed E.A. No. 51 of 2022 on 29.01.2024, holding that a separate application under Section 5 of the Limitation Act was necessary to condone the delay.

Procedural History

• 02.04.2007: Suit decreed in favor of respondent No. 1.
• E.P. No. 4 of 2017: Execution proceedings initiated for attachment and sale of the schedule property.
• E.A. No. 14 of 2020: Filed by the petitioner to declare absolute ownership of the schedule property.
• 29.07.2022: E.A. No. 14 of 2020 dismissed for default due to non-compliance with procedural steps.
• 21.12.2021: Counsel for the decree holder filed a memo informing the court of the death of the petitioner’s counsel.
• 02.03.2022: Executing court ordered steps after notice sent to the petitioner was returned with an endorsement that the addressee (petitioner’s father) had died on 15.04.2012.
• 29.10.2022: Petitioner filed E.A. No. 51 of 2022 to set aside the default order and restore E.A. No. 14 of 2020.
• 29.01.2024: Executing court dismissed E.A. No. 51 of 2022 on the ground that a separate application under Section 5 of the Limitation Act was not filed.
• CRP No. 934 of 2024: Present Civil Revision Petition filed challenging the order dated 29.01.2024.

Relief Sought

The petitioner sought:

• Setting aside of the order dated 29.01.2024 passed in E.A. No. 51 of 2022.
• Restoration of E.A. No. 14 of 2020 to its original file.
• Completion of the enquiry in E.A. No. 14 of 2020 as expeditiously as possible.

The Legal Issue

The Court framed two key questions:

1. Whether a separate petition under Section 5 of the Limitation Act is necessary when the affidavit filed in support of a petition to set aside a default order already contains reasons for condoning the delay.
2. Whether the order dated 29.01.2024 passed by the executing court suffers from any illegality.

Arguments Presented

For the Petitioner

• The petitioner contended that E.A. No. 51 of 2022 was filed within 30 days from the date of knowledge of the dismissal order (14.10.2022).
• The affidavit filed in support of E.A. No. 51 of 2022 sufficiently explained the reasons for the delay, including the death of the previous counsel and the subsequent delay in retrieving the case file.
• No separate application under Section 5 of the Limitation Act was necessary as the affidavit already contained the requisite explanation.
• Relied on the decision in Kotak Mahindra Bank Limited v. Kew Precision Parts Private Limited and Others [(2022) 9 SCC 364], where the Supreme Court held that a separate application under Section 5 of the Limitation Act is not mandatory if the affidavit explains the delay.

For the Respondent

• The respondent argued that the petitioner and respondent No. 2 (judgment debtor) colluded to create a registered settlement deed dated 28.08.2017 to defeat the decree holder’s rights.
• The petitioner was aware of the proceedings as both the petitioner and judgment debtor resided in the same house.
• The petitioner failed to assign proper reasons for the delay, and the executing court rightly dismissed E.A. No. 51 of 2022 for non-compliance with Section 5 of the Limitation Act.

The Court's Analysis

The Court undertook a detailed analysis of the procedural and legal aspects of the case:

1. Procedural Lapse by the Executing Court:

   • The executing court erred in dismissing E.A. No. 14 of 2020 for default based on an incorrect endorsement by the Amin that the petitioner had died on 15.04.2012. The claim petition was filed in 2020, making the endorsement patently false.
   • The executing court failed to verify the record before ordering steps, leading to an unjust dismissal.

2. Delay in Filing E.A. No. 51 of 2022:

   • The petitioner explained in the affidavit that he could not take steps due to the death of his counsel during the Covid-19 pandemic and the subsequent delay in retrieving the case file.
   • The petitioner filed E.A. No. 51 of 2022 on 29.10.2022, within 30 days from the date of knowledge (14.10.2022). Even if the date of knowledge is taken as the first week of October 2022, the application was filed within the prescribed period.

3. Applicability of Section 5 of the Limitation Act:

   • The Court noted that Section 5 of the Limitation Act applies to execution proceedings under the Andhra Pradesh State amendment to Order XXI Rule 106(3) CPC, which allows an application to be filed within 30 days from the date of knowledge of the order.
   • The Court relied on the decision in M.A. Qader v. Md. Azmat Ali [1988 (1) ALT 783], where a Division Bench of the composite High Court held that if the grounds for both the relief (restoration) and condonation of delay are the same, a separate application under Section 5 of the Limitation Act is not necessary.

   "Where the grounds for both the reliefs are the same, it is not necessary that the separate application should be filed to condone the delay. The power is vested in the Court and the satisfaction is that of the Court. If there is sufficient material before the Court from which such satisfaction can be arrived at, the Court can admit the petition even after the period of limitation."

4. Supreme Court Precedents:

   • The Court cited Bhagmal v. Kunwar Lal [(2010) 12 SCC 159], where the Supreme Court held that if the affidavit explains the delay sufficiently, a separate application under Section 5 of the Limitation Act is not required.

   "The question of filing Order 9 Rule 13 application was, in our opinion, rightly considered by the appellate court on merits and the appellate court was absolutely right in coming to the conclusion that the appellant-defendants were fully justified in filing the application under Order 9 Rule 13 CPC at the time when they actually filed it and the delay in filing the application was also fully explained on account of the fact that they never knew about the decree and the orders starting the ex parte proceedings against them. If this was so, the Court had actually considered the reasons for the delay also. Under such circumstances, the High Court should not have taken the hypertechnical view that no separate application was filed under Section 5."

   • The Court also relied on Kotak Mahindra Bank Limited v. Kew Precision Parts Private Limited and Others [(2022) 9 SCC 364], where the Supreme Court observed:

   "Section 5 of the Limitation Act, 1963 does not speak of any application. The section enables the court to admit an application or appeal if the applicant or the appellant, as the case may be, satisfies the court that he had sufficient cause for not making the application and/or preferring the appeal, within the time prescribed. A court/tribunal may exercise its discretion to condone delay, even in the absence of a formal application."

5. Conclusion:

   • The Court held that the executing court failed to exercise its jurisdiction properly by insisting on a separate application under Section 5 of the Limitation Act, despite the affidavit containing sufficient reasons for the delay.
   • The dismissal of E.A. No. 51 of 2022 resulted in irreparable injury to the petitioner, warranting interference by the High Court.

The Verdict

The Court allowed the Civil Revision Petition and set aside the order dated 29.01.2024 passed in E.A. No. 51 of 2022. Consequently, E.A. No. 14 of 2020 was restored to its original file. The executing court was directed to complete the enquiry in E.A. No. 14 of 2020 as expeditiously as possible, strictly in accordance with the law. No costs were awarded.

What This Means For Similar Cases

No Hypertechnical Approach to Condonation of Delay

• Courts must adopt a pragmatic approach when dealing with applications for restoration or condonation of delay. Hypertechnical requirements, such as insisting on a separate application under Section 5 of the Limitation Act, should not override substantive justice.
• If the affidavit filed in support of the restoration petition sufficiently explains the reasons for the delay, courts should consider the merits of the case rather than dismissing it on procedural grounds.

Affidavit Suffices for Condonation of Delay

• Practitioners should ensure that the affidavit filed in support of a restoration petition contains detailed and specific reasons for the delay, including:
  • The date of knowledge of the dismissal order.
  • The circumstances leading to the delay (e.g., death of counsel, Covid-19 restrictions, delay in retrieving case files).
  • The date on which the application was filed, ensuring it is within the prescribed period from the date of knowledge.
• This judgment reinforces that the affidavit itself can serve as the basis for condonation of delay, obviating the need for a separate application under Section 5 of the Limitation Act.

Executing Courts Must Verify Records Before Dismissal

• Executing courts must exercise due diligence in verifying records before dismissing applications for default. In this case, the executing court dismissed E.A. No. 14 of 2020 based on an incorrect endorsement by the Amin, which was patently false.
• Courts should ensure that procedural steps, such as issuing notices or ordering steps, are based on accurate information and verified records to prevent miscarriage of justice.