SHISHIR KUMAR, J. - (1.) HEARD Sri S.F.A. Naqvi, learned Counsel for the appellant. This second appeal is arising out of Original Suit No. 352 of 1994, filed by the plaintiff-respondent for injunction restraining the defendant-respondents from closing the Chak Road situate at Khasra No. 114. It was alleged in the plaint that he is a landless person and Khasra No. 613 measuring about 2 Bighas, Patta was granted in his favour and from the date of grant of Patta, he is in possession of the said property. This property has never been acquired by the respondent, therefore, a suit for injunction for the said purpose was filed. The Trial Court after hearing all the parties- vide its judgment and decree dated 13.3.1995 was pleased to decree the suit restraining the defendant-appellant from closing the Chak Road situate at Khasra No. 114. The appeal filed by the defendant-appellant too was dismissed vide its judgment and order dated 24.7.2002. The appellant being a Central Government Department, though the appeal should have been filed within time but admittedly no appeal was filed within time and it was filed about a lapse of 6 years, that too on 11.5.2009 against the judgment and order dated 24.7.2002.
(2.) NOTICES were issued on the application under section 5 of the Limitation Act and counter and rejoinder affidavits have been exchanged. One of the objections taken by the learned Counsel for the respondents Sri R.S. Dwivedi is that Bedi Ram died after the decision taken by the Appellate Court i.e. 24.7.2002 and the appeal has been filed in 2009 against dead persons, therefore, notices have also been issued to the dead persons. It has further been submitted that no application as provided in the Code of Civil Procedure to file appeal against the heirs of the deceased- respondent was ever filed. The explanation given in the application under section 5 of the I imitation Act is that after the judgment it was to be verified regarding the identity of the disputed property whether it comes in Gautam Budh Nagar or in district Ghaziabad and whether Court at Ghaziabad has jurisdiction for execution of the decree or Gautam Budh Nagar and further explanation has been given, that file was moving here and there for the purpose of seeking legal sanction for filing the appeal, therefore, the delay has taken place. I have perused the affidavit filed by one Mr. B.N. Bhattacharya who is working in the department as Senior Accountant, CISF, 5th Battalion, Ghaziabad. The averments made in the affidavit in pars 2 to 5 under section 5 of the Limitation Act are being quoted below: "2. That the delay in filing the present appeal is not deliberate and the same had been caused because the appellant was under impression that the respondents/plaintiffs are not interested in pursuing the matter and after passing of the judgment and decree by the Appellate Court, the plaintiffs had not pursued the matter and ultimately he filed execution proceeding before the Court below in the year 2006. 3. That thereafter the appellant was contesting the matter before learned Court below. Thereafter Tehsildar, Dadri had issued a letter addressed to the appellant on 31.10.2007 to the effect that village Chhijarsi, Pargnan-Loni, Tehsil- Dadri is situated in Gautam Budh Nagar and not in district Ghaziabad and as such present execution proceedings itself are being pursued before a Quirt, which had got no territorial jurisdiction over the property in question. 4. That as the Civil Court at Ghaziabad had got no jurisdiction to entertain the execution application, hence execution application was filed before learned Civil Judge (S.D.) Gautam Budh Nagar and the same was registered as Execution Case No. 26 of 2008 on 29.9.2008 and it was registered on 1.10.2008. 5. That ultimately it was advised that an appeal is to be filed before this Hon'ble Court against the impugned judgments and decree passed by Courts below. The appellant sought legal sanction for filing of the present second appeal before this Hon'ble Court which took some time and as such delay in filing of the appeal had been caused because financial sanction could not be obtained from the higher authorities and as and when the same was granted, ultimately the appellant preferred present appeal. The delay in filing the present appeal is not deliberate but the same had been caused due to non-availability of requisite sanction from the higher authorities and if in the opinion of this Hon'ble Court, there is some delay in filing the present appeal, the same deserves to be condoned and present appeal may kindly be treated within time."
(3.) FROM the perusal of the said averments which has been quoted in the present order, it is clear that no explanation has been given that what were the circumstances and what were the reasons for not filing the appeal within time. It is settled in law that day to day explanation has to be submitted in the application under section 5 of the Limitation Act. FROM the perusal of the affidavit it appears that in spite of the appellate order in 2002, they kept waiting till the execution filed by the decree-holder and before the Executing Court, they raised an objection regarding the jurisdiction of the Court. It has also been brought to the notice of the Court that in the execution proceeding objections filed by the defendant-appellant under Order XLVII CPC has already been dismissed vide its order dated 21.10.2010. Now the date has been fixed only for the purpose of taking possession. Once the objection has already been dismissed in the execution proceeding, in my opinion, nothing remains. Admittedly this order has not been challenged by the defendant-appellant in any Court of law. In such circumstances as in the opinion of the Court the reasons for filing the appeal beyond time has not been properly explained even it can be said that it has not at all been explained, therefore, delay in filing the appeal after a period of 6 years cannot be condoned.;