LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

V.G.Rao Advocate (Advocate)     22 July 2011

whther sec 5 of limitation act applicable or not?

Hi all,

"A" filed a suit against "B" for recovery of money basing on Pro note, "B" made appearence and filed vakalat through his counsel. "B" had not filed his Written statment within the statutory period or after court granting sufficient time to file same, but after giving sufficient opportunityies to him, "B" was set Ex-Parte by the court for non filing his W.S and for his non appearence. thereafter the case was posted for trial. After 11 months keeping quite, "B" filed application u/o 9 r/7 to set a side exparte order passed against him without filing his WS  and without serving the copy of the same to the plaintiff in S.R. However the office of the concern court has not put up petition on file since the "B" not tried pursue the petition nor appeared before the court thereafter.

However thereafter the matter adjourned for three more months, and  the court has recorded the evidence of plaintiff and decreed the suit on 01-02-2011 ex -parte against the "B"

After passing of decree Plaintiff had filed Execution petition for attachment of salry of "B" i.e Jdr, and attachment of salary of "B" was ordered, and attachment of salary was effected, and three months of salary of "B" was deducted and credited to the account of E.P.

While matter stood thus "B" filed application u/o 9 r/13 on 9-03-2011stating that he came to know about passing of decree on 28-02-2011, (that is to say from the date of Knowledge) and  the petition well  within the limitation and apart from the said petition "B" also filed  the said petition in E.P proceedings u/o 21 rule 26(2) to stay all further proceedings in the E.P on similar grounds.

My question is

at this stage whenter the aforesaid two petitions filed by the "B" are Maintainable or not? whether the said petitioms are hit  under sec 5 of Imdian Limitation act?

whether the petition filed U/ o 9 r/ 13 by "B" is within the period of Limitation? if yes how? If not provide any case law.

How ever the three months salary of "B" was already deducted and credited to the account of the E.P, at this stage can the same court has a power to stay all further proceedings in the said E.P?

(According to us the "B" was having knowledge of the suit from the date of filing of his vakalat, and even from the date of filing petition u/o 9 r/7 petition) viewing the said circumstances of the case whether Sec 5 of Indian Limitation act comes in to play or not?



Learning

 4 Replies

SACHIN AGARWAL (ADVOCATE)     24 July 2011

In my opinion, there is need to file application u/s 5 Limitation Act. Since the matter in application u/o 9 rule 13 is to be seen from the date of decree or date of knowledge as such the petition is well within time.

mastanrao.bhogadi (advocate)     29 July 2011

1. Regarding or9 rule13, the petion filed by B without filing Sec.5 is not at all maintainable.please see Art.123. In this case B has to file petition within 30days from the date of decree.

2. To stay the execution proccedings the rule 26(2) not applicable to this case.

kvss.prabhakar rao (Advocate )     13 August 2011

You already entered appearacne and fialed file w/s and the court passed exparte orders and again the court passed exprte decree agaisnt you on 1-2-2011 Hence youshould filed along with  application under Sec 5 of limitaion act for condonation of delay. The theory of knowledge will not applicable to prsent case as you have suffice knowledge about proceeding  prior filing of vakalath

KV.S.S PRABHAKAR RAO ADVOCATE, RAJAHMUNDRY ( A.P. )

LLB.ACS Gourav Khatri (COMPANY SECRETARY)     16 August 2011

agree with mastanrao.bhogadi


Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register  



Post a Suggestion for LCI Team
Post a Legal Query