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TMI Blog2009 (2) TMI 796X X X X Extracts X X X X X X X X Extracts X X X X ..... it No.150 of 1965, wherein it was directed : It is hereby decreed that the plaintiff is entitled for a declaration of title and possession over the plaint schedule property; and it is directed that the wooden hut placed by the Defendant No.1 be removed by him at his expense, failing which the Court shall remove the same and deliver possession of the property to the Plaintiff. The plaintiff is entitled to mesne profits at the rate of ₹ 50/- from the date of suit till delivery of possession. The description of the property in the said decree was as under : 8 cents of property with trees, building, well and a bunk (mobile hut) and all appurtenants thereto in Survey 365 described in Pandara Otti Partition Deed (marked Vol-II Plan) , situated in Chengazhassery Village, Trivandrum. The said decree was put in execution by Fanuval Stephen, the Decree holder in Original Suit No.150 of 1965 being Execution Petition No.705 of 1977. Fanuval Stephen died on or about 28.3.1985. Respondent Nos.1 to 5 herein, being his heirs and legal representatives, were impleaded as additional decree holder Nos.2 to 6 therein. The said execution petition was dismissed by an order dated 8.7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants to seek for appropriate relief, it is ordered that the decree holders shall not take delivery of the decree schedule property for a period of one month from today. Inasmuch as the appellants are being referred to seek for their reliefs in appropriate proceedings, substantial question of law formulated as Sl. No.4 in the appeal memorandum on which also the appeal was admitted is left open. Registry shall return the certified copies of documents produced by the appellants in this Execution Second Appeal to the counsel for the appellants. 8. Pursuant to or in furtherance of the said observations, a Revision Application was filed by the appellant on 30.6.2008 which was marked as C.R.P. No.593 of 2008(B). Along with the said application, an application for condonation of delay in terms of Section 5 of the Act was also filed. However, later on the said application was withdrawn and an application under Section 14 thereof was filed. An affidavit was affirmed in support thereof, inter alia, stating : The impugned order is dated 6.9.2005. The first appeal was filed on 3.10.2005. The second appeal was disposed of by this Hon'ble Court on 28.6.2008. This Revision Petition is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting the first appeal and second appeal before a wrong forum and, thus, Sub-section (2) of Section 14 of the Limitation Act would be attracted. 11. Mr. C.N. Sree Kumar, learned counsel appearing on behalf of the respondents, would, on the other hand, contend that the provision of Sub- section (2) of Section 14 of the Limitation Act is not applicable as the same applied in a suit. It was pointed out that the appellants in fact filed an application under Section 5 of the Limitation Act but withdrew the same. 12. The question which arises for consideration is as to whether only because a mistake has been committed by or on behalf of the appellants in approaching the appropriate forum for ventilating their grievances, the same would mean that the provision of Sub-section (2) of Section 14 of the Limitation Act, which is otherwise available, should not be taken into consideration at all. The answer to the said question must be rendered in the negative. The provisions contained in Sections 5 and 14 of the Limitation Act are meant for grant of relief where a person has committed some mistake. The provisions of Sections 5 and 14 of the Limitation Act alike should, thus, be applied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sufficient cause is shown then the court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the court may regard as relevant. It cannot justify an enquiry as to why the party was sitting idle during all the time available to it. In this connection we may point out that considerations of bona fides or due diligence are always material and relevant when the court is dealing with applications made under Section 14 of the Limitation Act. In dealing with such applications the court is called upon to consider the effect of the combined provisions of Sections 5 and 14. Therefore, in our opinion, considerations which have been expressly made material and relevant by the provisions of Section 14 cannot to the same extent and in the same manner be invoked in dealing with applications which fall to be decided only under Section 5 without refere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remedy of revision amongst the various High Courts. The plaintiff-appellant's revision was entertained for hearing by the High Court and that gave expectation to the plaintiff- appellant that the order of the executing court may be set aside and further, there was no inordinate delay in filing the suit under Rule 103. If, on examining the facts, it is found that there was no lack of due care, there is no reason why the plaintiff-appellant should not be accorded the benefits of Section 14 of the Act. Does the interest of justice demand that the plaintiff should be refused the benefit of Section 14 of the Act on account of the negligence on the part of his counsel, ill-advising him to file a revision instead of filing a fresh suit? An illiterate litigant cannot be made to suffer when he is ill-advised by his counsel. On the facts and circumstances of this case, we are satisfied that the plaintiff-appellant prosecuted the earlier civil proceeding in good faith. In Consolidated Engineering Enterprises v. Principal Secretary, Irrigation Department and Others [(2008) 7 SCC 167], this Court held: 22. The policy of the section is to afford protection to a litigant against the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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