The court ruled that the High Court improperly exercised its discretion in condoning a 917-day delay in filing an appeal against a decree for specific performance.

ORDER

Leave granted.

2. Being aggrieved by the order dated 21.07.2023 passed by the learned Single Judge of the Gauhati High Court in Case No. I.A/1126/2016 in R.F.A. No.30/2023, filed by the defendant(s) being a Regular First Appeal, the successful plaintiff(s) in the suit for specific performance has preferred this appeal.

3. By the order dated 21.07.2023, passed on the interim application in the aforesaid Regular First Appeal, the High Court has condoned the delay of 917 days in filing the appeal. Hence, the plaintiff has preferred this appeal.

4. We have heard learned counsel for the appellant/plaintiff and learned senior counsel for the respondent(s)/defendant(s) and perused the material on record.

5. During the course of submission, it was brought to our notice that the suit for specific performance was filed by the appellant herein based on an Agreement to Sell dated 14.09.2003. As there was a delay in the execution of the sale deed, legal notices were got issued by the appellant on 08.08.2005 and 12.09.2005. Thereafter, the suit was filed on 18.02.2006. The suit was contested by the defendant(s) and decreed by judgment and decree dated 20.11.2012. The first defendant, who is stated to be the brother of defendant nos.2 and 3 and who had the responsibility of conducting the suit did not assail the said judgment and decree during his life time.

6. Learned senior counsel for the respondent(s) at the outset submitted that the first defendant was un-well and therefore he did not challenge the said judgment and decree during his life time. He passed away on 13.02.2015. However, by then, execution petition was filed by the appellant on 07.06.2014 and the registered sale deed in execution of the decree for specific performance of Agreement to Sell dated 14.09.2003 was executed on 27.11.2014. It is thereafter on 29.08.2015 that the Regular First Appeal was filed by the legal representatives of the first defendant with an application seeking condonation of delay in filing the said appeal.

7. Learned counsel for the appellant submitted that the High Court ought not to have condoned the huge delay of 917 days in filing the appeal inasmuch as the surrounding facts and the subsequent events ought to have been taken into consideration. It was submitted that in fact the first defendant did not take steps to cross-examine the plaintiff’s witness on certain crucial aspects of the case neither was any concrete evidence let in by the said defendant(s). He further submitted that during the life time of the first defendant, the suit for specific performance was decreed. But he did not choose to appeal the same. Even though, he may have been un-well, nothing prevented the defendant(s) from assailing the said judgment and decree through a power of attorney holder but the same was not done. The legal representatives of the deceased first defendant chose to file the appeal after a delay of 917 days. The High Court has not exercised its discretion in accordance with law in condoning the said delay.

8. Learned counsel for the appellant submitted that the appellant being successful in the suit has already received the fruits of the decree and at this stage the same may not be interfered with at the instance of the legal representatives of the deceased first defendant particularly when the sisters of defendant no.1 have not independently assailed the said judgment and decree.

9. Per contra, learned senior counsel appearing for the respondent(s) again submitted that the first defendant, who was in charge of defending the suit was un-well and was bed-ridden, therefore, he could not assail the said judgment and decree. On coming to know of the same, his legal representatives took steps to assail the same. By then, sufficient time had passed. He further submitted that the sisters of the first defendant also filed impleading applications in R.F.A No.30/2023 so as to assail the judgment and decree of the Trial Court. It was further submitted that merely because th