AMALENDU KUMAR BERA & ORS.versusTHE STATE OF WEST BENGAL

                           [2013] 2 S.C.R. 484


A                 AMALENDU KUMAR BERA & ORS.
                                     v.
                    THE STATE OF WEST BENGAL
                    (Civil Appeal No. 2677 of 2013)
                            MARCH 22, 2013
B
       [SURlNDER SINGH NIJJAR AND M.Y. EQBAL, JJ.]

           DELA YILACHES:

c      Decree against State Government - Execution of -
  Objection u/s 47 - Rejected - Delay in filing revision - Held:
  In the application for condonation of delay, no sufficient cause ··
  has been shown which may entitle the respondent to get a
  favourable order for condonation of delay - Merely because
  the respondent is the State, delay in filing appeal ot revision
0
  cannot and shall not be mechanically considered; and in
  absence of 'sufficient cause' delay shall not be condoned -
  Code of Civil Procedure, 1908 - s.47 - Limitation Act, 1963 -
    s.5.
E          Delay - 'Sufficient cause' - Consideration of.

      In the execution case filed In 2009 to get the decree
  dated 7.8.1969 in a suit for declaratlon of title and
  permanent injunction, executed against the respondent-
F State Government, the objection uls 47 CPC filed by
  respondent in the year 2010, was rejected by the
  executing court on .17.8.2010. Another objection u/s 47
  CPC flied by the State on 15.9.2011 was also rejected. The
  respondent-State then filed a civil revision along with an
G application for condonation of delay before the District
  Judge challenging the earlier order dated 17.8.2010. The
  delay In filing the revision was condoned. The High Court
  declined to Interfere.


H                                  484
  AMALENDU KUMAR BERA & ORS. v. STATE OF             485
              WEST BENGAL
    Allowing the appeal, the Court                          A
     HELD: 1.1 Merely because the respondent is the
State, delay in filing the appeal or revision cannot and
shall not be mechanically considered and in absence of
'sufficient cause' delay shall not be condoned .. In the B
instant case, admittedly, the earlier objection filed by the
respondent-State u/s 47 CPC was dismissed on
17.8.2010. Instead of challenging the said order the
respondent after about one year filed another objection
on 15.9.2011 u/s 47 which was also rejected by the
executing court. It was only after a writ of attachment was C
issued by the executing court that the respondent
preferred civil revision against the first order dated
17.8.2010 along with a petition for condonation of delay.
Curiously enough in the application for condonation of
delay no sufficient cause has been shown which may D
entitle the respondent to get a favourable order for
condonation of delay. The expression 'sufficient cause'
should be considered with pragmatism in justice oriented
approach rather than the technical detection of 'sufficient
cause' for the explaining every day's delay. The delay in E
official business requires its pedantic approach from
public justice perspective. [para 9-1 OJ [490~F-G; 491-A-D;
492-B]

     Union of India vs. Nirpen Sharma AIR 2011 SC .1237 -   F
referred to.

      1.2 True it is, that courts should always take liberal
approach in the matter of condonation of delay,
particularly, when the appellant is the State but in a case
where there is serious laches and negligence on the part G
of the State in challenging the decree passed in the suit
and affirmed in appeal, the State cannot be allowed to wait
to file objection u/s 47 till the decree holder puts the
decree in execution. The delay in filing the execution case
cannot be a ground to condone the delay in filing the H
    486      SUPREME COURT REPORTS               [2013) 2 S.C.R.


A   revision against the order refusing to entertain objection
    u/s 47 CPC. This aspect of the matter has not been
    considered by the High Court while deciding petition for
    condoning the delay. [para 10] [491-E-F; 492-A..B]

          1.4 There is no justification in condoning the delay
8
    in filing the revision petition. The impugned order passed
    by the High Court is set aside. Consequently, petition for
    condonation of delay in filing the revision petition stands
    rejected. [para 11] [492-C-D]
c                         Case Law Reference:
          AIR 2011 SC 1237        referred to          para 9
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    2677 of 2013.
D
        From the Judgment and Order dated 22.03.2012 of the
    High Court at Calcutta in C.O. No. 602 of 2012.

      Ranjan Mukherjee, S. Bhowmick, Soumen Kr. Dutta, B.P.
E Yadav, Sarla Chandra for the Appellants.

        Joydeep Mazumdar, Avijit Bhattacharjee for the
    Respondent.

          The Judgment of the Court was deliverd by
F         M.Y. EQBAL, J. 1. 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
G 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
H
  AMALENDU KUMAR BERA & ORS. v. STATE OF                       487
        WEST BENGAL [M.Y. EQBAL, J.]
in favour of the person seeking condonation of delay in filing        A
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.
                                                                      B
       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 C
 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 D
 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 V(as filed
  by the Respondent-State. The appellant-decree holder then put
 the decree in execution by levying execution case No.27 of E
.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 F
 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 G
 said order passed in Miscellaneous Case No.18 of 201 O 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,
                                                                       H
    488      SUPREME COURT REPORTS                   [2013) 2 S.C.R.


A   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
8
  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
C 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:-

D         "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:
E
                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.
F
                 Eventually, the decree holder files the instant
          executing case for executing decree so obtained, after
          taking fresh steps upon the JDR. JDR/State appeared and
          files a w/o against the instant executing case on 6.4.2010
          and the same was registered as J. Miscellaneous No.18/
G
          2010 under Section 47 of C.P.C. Upon contested hearing
          of the J. Miscellaneous case, this Court by way of order
          No.18 dated 17.8.2010 rejected the J. Miscellaneous case
          on contest observing inter alia that the said objection under

H
   AMALENDU KUMAR BERA & ORS. v. STATE OF                        489
         WEST BENGAL [M.Y. EQBAL, J.]
     Section 47 of C.P.C. is a fulfill attempt by the State of W.B.     A
     to delay the executing proceeding of the decree holder.

           Thereafter, the decree holder took steps for
     executing of the decree passed on 7.8.1969 and then in
     course of the time. Writ of Attachment of moveable                 8
     property under order 21 Rule 30 CPC was issued, and the
     date has been fixed on 20.09.2011 for return of such writ
     upon execution.

            Now, the JDR/State has filed fresh petition under
     Section 47 of C.P.C. along with a prayer for recall writ of        C
     attachment. However, since the state had already instituted
     an objection case under Section 47 of C.P.C. and the
     same has already been disposed of and there present
     petition under Section 47 of C.P.C. is misconceived and
     liable to be rejected. Consequently, the petition for recall       D
     of writ is also misconceived and liable to be rejected."

            Hence, it is

            Ordered
                                                                        E
     That the petition under section 47 of C.P.C. dated
     15.9.2011 is considered and rejected.

     That the petition dated 15.9.2011 for recall of writ of
     attachment , issued on 20.08.2011 is consequently
                                                                        F
     rejected.

     To date."

       7. After the said objection under Section 47 was rejected
 on 15.9.2011, the Respondent-State filed a Civil Revision              G
 before the District Judge challenging the earlier order dated
 17.8.2010, whereby the objection under Section 47 C.P.C. in
.miscellaneous case No.18 of 2010 was dismissed. Along with
 the said revision petition, a separate application under Section
 5 of the Limitation Act was filed for condonation of delay in filing   H
    490      SUPREME COURT REPORTS                    [2013) 2 S.C.R.


A the revision petition. The learned District Judge stayed the
  operation of the order dated 17.8.2010 on the ground that the
  interest of the State will be adversely affected and the very
  object of the filing the revision petition will be frustrated. The
  said stay order was passed on 2.11.2011.
B
       8. On 3.2.2011, the Limitation Petition filed by the
  respondent under Section 5 of the Limitation Act for condoning
  the delay in filing the Revision Petition was taken up for hearing.
  Although, the District Judge in its order dated 3.2.2012 noticed
  that the Courts do not have unlimited and unbridled
C discretionary powers to condone the delay and the discretion
  has to be exercised within reasonable bounds, known. to law.
  Even then the Court allowed the Limitation Petition and
  condoned the delay in filing the revision Petition. Aggrieved by
  the said order the appellant-decree holder moved the Calcutta
D High Court by filing a revision petition being C.O. No.602 of
  2012. The High Court by impugned order dated 23.3.2012
  dismissed the revision petition on the ground inter-alia that a
  liberal attitude should be adopted in the matter of condonation
  of delay when there is no gross negligence or deliberate
E inaction or lack of bona-fide on the part of the State. Hence,
  this appeal by the appellant-decree holder challenging the
  aforesaid order passed by the High Court in Revision Petition.

         9. We have heard the learned counsel appearing for the
F appellant and the learned counsel appearing for the
  Respondent-State. There is no dispute that the expression
  'sufficient cause' should be considered with pragmatism in
  justice oriented approach rather than the technical detection of
  'sufficient cause' for the explaining every days' delay. However,
G it is equally well settled that the Courts albeit liberally considered
  the prayer for condonation of delay but in some cases the Court
  may refuse to condone the delay in as much as the Government
  is not accepted to keep watch whether the contesting
  respondent further put the matter in motion. The delay in official
  business requires its pedantic approach from public justice
H
  AMALENDU KUMAR BERA & ORS. v. STATE OF                       491
        WEST BENGAL [M.Y. EQBAL, J.]
perspective. In a recent decision in the case of Union of India        A
vs. Nirpen Sharma AIR 2011 SC 1237 the matter came up
against the order passed by the High Court condoning the
delay in filing the appeal by the appellant-Union of India. The
High Court refused to condone the delay on the ground that the
appellant-Union of India took their own sweet time to reach the        B
conclusion whether the judgment should be appealed or not.
The High Court also expressed its anguish and distress, the
way the State conduct the cases regularly in filing the appeal
after the same became operational and barred by limitation.

       10. In the instant case as noticed above, admittedly earlier    C
objection filed by the Respondent-State under Section 47 of the
Code was dismissed on 17.8.2010. Instead of challenging the
said order the Respondent-State after about one year filed
another objection on 15.9.2011 under Section 47 of the Code
which was finally rejected by the executing court. It was only after   D
a writ of attachment was issued by the executing court the
respondent preferred civil revision against the first order dated
 17.8.2010 along with a petition for condonation of delay.
Curiously enough in the application for condonation of delay no
 sufficient cause has been shown which entitle the respondent          E
to get a favourable order for condonation of delay. True it is,
 that courts should always take liberal approach in the matter
 of condonation of delay, particularly when the appellant is the
 State but in a case where there is serious laches and
 negligence on the part of the State in challenging the decree         F
 passed in the suit and affirmed in appeal, the State cannot be
allowed to wait to file objection under Section 47 till the decree
holder puts the decree in execution. As noticed above, the
decree passed in the year 1967 was in respect of declaration
of title and permanent injunction restraining the Respondent-          G
State from interfering with the· possession of the suit property
of the plaintiff-appellant. It is evident that when the State tried
to interfere with possession the decree holder had no
alternative but to levy the execution case for execution of the
decree with regard to interference with possession. In our             H
    492     SUPREME COURT REPORTS                    [2013) 2 S.C.R.

A opinion their delay in filing the execution case cannot be a
  ground to condone the delay in filing the revision against the
  order refusing to entertain objection under Section 47 CPC.
  This aspect of the matter has not been considered by the High
  Court while deciding petition for condoning the delay. Merely
B because the Respondent is the State, delay in filing the appeal
  or revision cannot and shall not be mechanically considered and
  in absen~ of 'sufficient cause' delay shall not be condoned.

        11. For the aforesaid reasons we do not find any
  justification in condoning the delay in filing the revision petition.
C This appeal is, therefore, allowed and the impugned order
  passed by the High Court is set aside. Consequently, petition
  for condonation of delay in filing the revision petition stands
  rejected.

D R.P.                                              Appeal allowed.