LexAARIFABEN YUNUSBHAI PATEL & ORS. versus MUKUL THAKOREBHAI AMIN & ORS.
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A B C D E F G H 944 SUPREME COURT REPORTS [2020] 4 S.C.R. AARIFABEN YUNUSBHAI PATEL & ORS. v. MUKUL THAKOREBHAI AMIN & ORS. (Civil Appeal Nos. 1643-1644 of 2020) MARCH 17, 2020 [L. NAGESWARA RAO AND DEEPAK GUPTA, JJ.] Code of Civil Procedure, 1908 – Or. XXI, r. 90 – Limitation Act, 1963 – s.14 and Art. 127 of Third Division, Part -I – Objections filed by the respondents u/Or. XXI, r.90 was filed within time or not – Respondent no.3 obtained a loan from respondent no. 2-Co-op Bank and failed to repay the loan – Respondent no. 2 filed summary proceedings for recovery of the amount due to it from respondent nos.1 and 3 – The decree was passed in favour of respondent no. 2 and against respondent nos. 1 and 3 – Respondent no. 2 filed application for execution of decree – The Court allowed the said application and Court receiver was permitted to sell the attached properties – In the auction of the properties, the appellant was the highest bidder and the Executing Court permitted the sale – The respondent no.3 sought time to file objections – Instead of filing objections, respondent no.1 filed a writ petition challenging the sale of properties – The Executing court issued a sale certificate in favour of appellants – Before the High Court, a statement was issued by respondent no.1 that a buyer is willing to purchase properties at a higher price, the High Court permitted the same – The appellants preferred a Letters Patent Appeal and the said order of the Single Judge of the High Court was stayed – Aggrieved, respondent no.1 filed Special leave Petition – Meanwhile, respondent no. 2 had filed application before the Executing Court that it did not authorise the sale of properties – Consequent to respondent no.2 application, respondent no.1 made a statement to withdraw SLP on 21.04.2008 and filed an objection application u/Or. XXI, r. 90 of CPC on 20.06.2008 – Respondent no.1 contended that writ petition was dismissed on 17.07.2008 and the objections to the execution petition was filed on 20.06.2008 and the same was within limitation – Held: The proposition of the respondent no.1 cannot be accepted – Any person claiming benefit of s. 14 of the Limitation Act can only claim exclusion of time of [2020] 4 S.C.R. 944 944 A B C D E F G H 945 that period for which it had been prosecuting another remedy with due diligence and in good faith – The writ petition was not filed in good faith or by due diligence because respondent no. 3 had made a statement that he would file objections to execution petition – However, assuming that these proceedings were filed in good faith after a statement was made before the Supreme Court on 21.4.2008, respondent no.1 should have immediately filed the application before the executing Court – The continuance of the proceedings before the High Court can neither be said to have been done in good faith nor in exercise of due diligence – Even by giving benefit of all days of passing of the orders then also respondent nos. 1 and 3 would be barred by limitation for filing application u/Or. XXI, r. 90 of CPC by 6 days – Since there is no power to condone such delay, the petitions are dismissed as being time- barred. Allowing the appeals, the Court HELD: 1. As far as the present case is concerned it is not even disputed by R-1 that it had knowledge about the sales on 18.12.2007 when counsel appearing for R-3, had sought permission to file the objection application under Order XXI Rule 90 of the CPC. The writ petition was filed on 26.12.2007. On 21.04.2008, R-1 withdrew the SLP before this Court on the ground that an application has been filed by R-2 before the executing court on 18.03.2008. The writ petition itself was dismissed on 17.07.2008. On behalf of R-1 it is urged that since the writ petition was disposed of on 17.07.2008 and the objection to the execution petition was filed on 20.06.2008, the same is within limitation. [Para 11] [952-F-G] 2. This Court is unable to accept this proposition. Any person claiming benefit of Section 14 of the Act can only claim exclusion of time of that period for which it had been prosecuting another remedy with due diligence and in good faith. This Court is prima facie of the view that it cannot be said that the writ petition was filed in good faith or by due diligence because on 18.12.2007 the counsel for R-3 had made a statement that he would file objections to the execution petition. However, assuming that these proceedings were filed in good faith, after a stateme
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