PRASENJIT MANDAL,J. - (1.) THIS application is at the instance of a third party and is directed against the Order dated August 6, 2011 passed by the learned Civil Judge (Junior Division), 1st Court, Alipore in Misc. Case No.73 of 2008 arising out of Title Execution Case No.24 of 2004.
(2.) THE said misc. case was filed under Order 21 Rules 97, 98, 99, 100, 101 and 103 of the C.P.C. after disposal of the Title Execution Case No.24 of 2004 and that application was converted into the Misc. Case No.73 of 2008. The petitioners also filed an application under Section 5 of the Limitation Act for condonation of delay in filing the said misc. case. The decree-holder instituted the aforesaid execution proceeding for taking possession of a premises according to the award passed by the learned Arbitrator in Dispute Case No.10/RCS of 1994-95. The petitioners have contended that they were not aware of any arbitration proceeding or the institution of the execution proceeding. He is an N.R.I. and as such, he had knowledge of such matters and he had been dispossessed from the Garage No.4 without his knowledge. So, he filed the said application for getting possession of the said garage and other reliefs. The opposite parties contested the said application and upon hearing both the sides, the learned Trial Judge was of the opinion that the application was filed beyond the period of limitation and he could not explain the delay and as such, the application under Section 5 of the Limitation Act was rejected. In consequence, the Misc. Case No.73 of 2008 has been dismissed. Being aggrieved, this application has been preferred. Now, the question is whether the impugned ordr should be sustained. Admittedly, the petitioner is an N.R.I. but his father resides in Kolkata and the petitioner visits in India every year and stays here for two-three months a year. The delivery of possession by the baillif was executed on February 19, 2005. The said Title Execution Case No.24 of 2004 was disposed of on April 24, 2006.
(3.) ADMITTEDLY, the petitioner arrived in India on October 26, 2005 when the execution case was alive. Before that Annual General Meeting of the opposite party no.2 society was held on September 17, 2005 and appropriate resolution was passed in the said meeting and the copy of the resolution was communicated to the father of the petitioner on September 19, 2005. So, from such facts, it is obvious that the petitioner was very much aware of the matters at least from the date of resolution, that is, on September 17, 2005 and immediately after arrival in India on October 26, 2005, he did not take any steps in the execution case. Not only that the petitioner again came to India on September 7, 2006 and he filed an application being A.S.T. No.103 of 2007 in the Hon'ble Court, Calcutta on January 19, 2007 then he left for U.S.A. on January 22, 2007. The petitioner arrived in India again on October 24, 2007 and he left India on January 15, 2008. The Misc. Case No.73 of 2008 under Order 21 Rules 97, 98, 99, 100, 101 & 103 of the C.P.C. was filed only on January 21, 2008. He could not explain that in spite of due knowledge of the matter, he could not file the aforesaid misc. case on time. Under the aforesaid circumstances, the contention of the petitioner that he was unaware of the award or the execution proceeding or that he was prevented by sufficient cause for filing the application under Section 5 of the Limitation Act on time has been rightly rejected by the learned Trial Judge.;