Section 14(2) of Limitation Act Can't Be Invoked While Switching Between Order XXI Rule 97 and Rule 99 CPC Simultaneously – Orissa High Court

"Filing Applications Under Order XXI Rule 97 and Rule 99 CPC Together Defeats the Scope of Section 14(2) of Limitation Act" – High Court of Orissa at Cuttack delivered a significant ruling, laying down a key interpretation of Section 14(2) of the Limitation Act in the context of dispossession claims under Order XXI of the Civil Procedure Code (CPC). The Court held that the benefit of Section 14(2) cannot be extended where parties attempt to simultaneously invoke Order XXI Rule 97 and Rule 99 of CPC.

No Benefit of Section 14(2) When Applications Under Rule 97 and 99 Are Simultaneously Prosecuted

Justice Sashikanta Mishra held that “Section 14(2) would come into play when the first application is disposed of, not when it is pending”, thereby rejecting the respondent’s argument that the time spent on the earlier proceedings under Rule 97 should be excluded when computing limitation for Rule 99.

The Court allowed the second appeal by the appellants (legal heirs of Mayadhar Behera), setting aside the judgment of the First Appellate Court which had erroneously held that the application under Order XXI Rule 99 was within the limitation period.

A Tale of Cancellation, Execution, and Dispossession

The dispute revolved around a small parcel of land (Ac.0.10 decs) originally sold by Mayadhar Behera to Golakh Ch. Pati by a registered sale deed dated 02.03.2005. However, Behera later filed a suit for declaration of title (C.S. No. 28/2005) without impleading Golakh, and after obtaining a decree, executed possession through Execution Case No. 12/2008.

Golakh, claiming dispossession, first filed CMA No. 37/2008 under Order XXI Rule 97 CPC, and upon learning about execution, later filed CMA No. 5/2009 under Order XXI Rule 99 CPC, asserting that his dispossession was unlawful.

While the trial court rejected Golakh’s plea under Rule 99, the First Appellate Court reversed it, relying on the argument that Golakh was prosecuting the prior application diligently, thus warranting the benefit of Section 14(2) of the Limitation Act.

On Applicability of Article 128 of the Limitation Act:

The Court unequivocally held: “There cannot be any doubt that the period of limitation for filing application under Order XXI Rule 99 C.P.C. is 30 days from the date of dispossession.”

Further, it clarified that Section 5 of the Limitation Act does not apply to execution proceedings under Order XXI, and hence strict compliance with limitation was mandatory.

On Simultaneous Applications under Rule 97 and Rule 99 CPC:

A crucial finding was that Golakh had filed the Rule 99 application on 8.1.2009, while the Rule 97 application was still pending and later dismissed as not pressed on 19.1.2009. This overlapping invocation, the Court noted, defeats the invocation of Section 14(2).

“Accepting such argument would imply that the application under Order XXI Rule 97 was wrongly filed... this Court has found that the benefit of exclusion of time envisaged under Section 14(2) would not be available.”

“It would tantamount to invocation of the jurisdiction of the Court under two distinct provisions... simultaneously.”

Constructive Possession Not Enough Under Rule 99

While Golakh argued constructive possession based on registered sale deed and de jure ownership, the Court reiterated:

“Possession within the meaning of Order XXI Rule 99 C.P.C. is the actual physical possession and not constructive possession.”

Hence, the trial court's view was upheld that Golakh was not in actual possession, and his dispossession claim under Rule 99 was flawed both factually and legally.

Limitation Must Be Strictly Applied in Execution Matters

The High Court allowed the second appeal, restoring the trial court’s dismissal of the application under Rule 99 and setting aside the First Appellate Court’s judgment.

“The impugned judgment and decree are hereby set aside”, the Court concluded, emphasizing that procedural discipline under the Limitation Act and Order XXI CPC is not a matter of discretion but strict application.

Date of Decision: 4th September 2025