JUDGMENT
K.S. Radhakrishnan, J.
1. This appeal has been preferred by the assignee of the first defendant.
Suit was instituted by the first respondent herein as plaintiff praying for a
decree for partition of 1/4th rights of the plaint schedule property with mesne
profits at the rate of Rs. 1,200/- per year. Trial court decree the suit. In
appeal it was confirmed. Aggrieved by the same this appeal has been
preferred.
2. When the matter came up for hearing, counsel appearing for the respondents
raised a preliminary objection that the appeal itself is not maintainable. We
will deal with that question after examining the facts of the case. Plaint
schedule property belongs to defendants 1 to 4. Fourth defendant is the son of
the first defendant and has a share. Plaintiff had instituted suit, O.S.No. 163
of 1974 before the Munsiff’s Court, Sathur, as against fourth defendant which
was decreed. The decree was sought to be executed by filing E.P. No. 383 of 1976
which was filed before the Munsiff’s Court, Palghat, for attachment and sale of
the fourth defendant’s rights in the property. Fourth defendant’s right was sold
and purchased by the plaintiff on 27.11.1978 in execution of the decree and the
court confirmed the sale on 31.1.1979. Plaintiff obtained symbolic delivery as
per sale certificate dated 31.1.1979 and was recorded on 11.2.1980. Plaintiff is
therefore in joint possession of the property belonged to defendants 1 to 3 and
his 1/4th right in the same.
3. First defendant filed a written statement stating that the share of the
fourth defendant was not available to be attached in E.P.No. 383 of 1976 on the
file of the Munsiff’s Court, Palghat since he had no saleable interest in the
property at that time. Fourth defendant was doing business in the property and
had kept salestax arrears for 1968-69, 1969-70 and 1970-71 amounting to Rs.
22,467-25. State had got paramount charge over the share of the fourth
defendant. Consequently it had initiated revenue recovery proceedings against
him. In exercise of the powers conferred under the Revenue Recovery Act,
District Collector, Palghat had brought fourth defendant’s properties to sale
after due publication. First defendant purchased the said property in public
auction held on 28.10.1980 which was later on confirmed as per District
Collector’s order dated 30.12.1980. Plaintiff is therefore estopped from
claiming and right in the property. It was contended that the suit was liable to
be dismissed. In order to establish his case plaintiff had produced Exts. A1 and
A2 documents. No oral evidence was adduced on the side of the plaintiff. On the
side of the defendants first defendant got examined as DW-1 and Exts. B1 and B2
were produced. Trial court framed an issue whether the plaintiff had acquired
any valid title in respect of 1/4th share of the fourth defendant and also
examined the question as to whether Government had any prior charge and the
auction sale was subject to such charge. After examining the oral and
documentary evidence the trial court came to the conclusion that first defendant
did not succeed to the fourth defendant’s share of the property pursuant to
revenue sale. It was therefore held that the plaintiff was entitled to get
preliminary decree for partition and mesne profits from defendants 1 to 3 from
the date of the plaint. Judgment was delivered on 27.9.1983.
4. The first defendant then filed A.S.No. 22 of 1984 before District Court,
Palghat on 7.2.1984. Appeal was not competent before District Court, Palghat and
returned for presentation before this court. Appeal was then filed before this
court on 20.8.1984 and numbered as A.S.No. 217 of 1984. When the appeal was
heard by the learned single judge a preliminary objection was raised by the
respondents that the appeal was not filed within the period of limitation. It
was pointed out that no petition for condoning the delay was filed. Consequently
exclusion of time is not possible under Section 5 of the Limitation Act. It was
also pointed out that the court below was not justified in fixing the time for
presenting the appeal before this court and the appeal was barred by the law of
limitation. On facts also learned single Judge found there is no merit in the
appeal. Consequently the appeal was dismissed.
5. Before the examine the merits of the case we may examine whether appeal is
maintainable. We find from the facts that appeal was wrongly filed before the
District Court, Palghat though it should have been filed before this court. Counsel appearing for the appellant cited several decisions before us and contended that the learned single judge ought to have condoned the delay since the appellant was honestly and diligently prosecuting the matter before the District Court, Palghat. Counsel placed reliance mainly on the decisions, such as Sarojini v. Pathummal (1987 (2) KLT 576), Builders Supply
Corporation v. The Union of India(AIR 1965 S.C. 1061),
Parameswaran v. Ramachandran(1986 KLT 982) Zafar Khan and Ors. v. Board of Revenue and Ors.(AIR 1985 S.C. 39), Abraham v. Sadanandan and Ors.(1979 KLT 493) etc.
6. We notice that the appeal filed before the District Court was not
maintainable. The appeal was kept pending before the court from 7.2.1984 to
30.7.1984. The appeal ought to have been filed before this court. District Court
returned the appeal memorandum. The appeal was filed before this court only on
20.8.1984. Contention was raised before the learned single judge that since the
appellant was prosecuting with due diligence and good faith before the District
Court the period spent before that court be excluded under Section 14 of the
Limitation Act. Even if the period spent between 7.2.1984 and 30.7.1984 be
excluded under Section 14 the appellant had not filed any application under
Section 5 of the Limitation Act to exclude the delay from 30.7.1984 to 20.8.1984
before this court. It is well settled, existence of sufficient cause is a
condition precedent for the exercise of power of granting or refusing extension
of time. Since no application was filed under Section 5 of the Limitation Act
for condoning the delay in filing the appeal, A.S.No. 217 of 1984 was
incompetent and was liable to be dismissed on that ground alone. Filing of an
application under Section 14 by itself will not save limitation. There is a
clear distinction between Section 5 and Section 14. Section 5 affords an
extension of time for sufficient cause. Section 14 provides for exclusion of
time during which civil proceedings was pending in computing the period of
limitation.
7. The appellant after filing this appeal filed C.M.P. No. 1953 of 1992 for
exclusion of time under Section 14 and Section 5 of the Limitation Act for
filing the Appeal Suit. We are of the view, such a petition is not maintainable
in this appeal, but should have been filed in the Appeal Suit. We may also point
out that the District Court has no power to grant time for filing the appeal
before the superior court. It is for the superior court to determine whether
application under Section 14 or under Section 5 be allowed or not. We have no
hesitation to hold that the appeal. A.S.No. 217 of 1984, was incompetent and was
rightly dismissed. Since the Appeal Suit was not competent, this appeal from
that appeal is also not liable to be entertained as it is not maintainable.
Since we have found that the appeal is not maintainable, we need not further
probe into the merits of this case. The appeal would therefore stand dismissed.
Parties would bear their respective costs in this appeal.