IMPORTANT POINT
Setting aside ex-parte decree – Facts and events relating to passing of an ex-parte decree are distinct from facts and events relating to delayed filing of application for setting aside of ex-parte decree – Adjudication and determination of a court with respect to setting aside ex-parte decree are independent of adjudication with respect to condoning delay.

JUDGMENT :

1. Leave Granted.

2. Appellants as plaintiffs obtained an ex-parte decree in a suit for specific performance of an agreement for sale. That was challenged by the respondents/defendants by filing an application to set it aside and also filed another application for condoning the delay in its filing. The Trial Court refused to condone the delay and as a natural consequence it dismissed the application for setting aside ex-parte decree. The respondents/defendants filed a revision only against the order refusing to condone the delay. No revision was filed against the other consequential order. By the order impugned before us, the High Court not only condoned the delay but proceeded to set aside the ex-parte decree and restored the suit for further hearing.

2.1 Partly allowing the appeal, while not interfering with the decision of the High Court in condoning the delay, we have revived and restored the I.A. No. 1163 of 2021 for setting aside the ex-parte decree to its original number and directed the Trial Court to hear and dispose of the application on its own merit. This decision is for the reason that the circumstances, justification, consideration and legal remedies for ‘condoning the delay’ on the one hand and ‘setting aside the ex-parte decree’ on the other are different and must be dealt with independently. The short facts leading to filing of this appeal are as under:-

3. The appellants, plaintiffs in the suit alleges that the first respondent, father of second respondent, purchased certain property in 1992 through a sale deed and in the year 2012 gifted a part of it to his daughter. In the year 2015, both the father and the daughter executed an agreement of sale in favour of the appellants for a total consideration of Rs. 1,89,75,000/-. It is alleged by the appellants that, apart from an advance payment of rupees five lakhs on the date of the agreement, the appellants paid an additional amount of rupees forty lakhs to the respondents on 21.12.2015. It is further alleged by the appellants that clause six of the agreement of sale obligated respondents to conduct land survey, demarcate boundaries and proceed to execute the sale deed, however, instead of surveying the land, when the respondents issued a legal notice on 07.04.2016 cancelling the agreement of sale, the appellants had to approach the Civil Court to institute a suit for specific performance. ¹[OS No. 150 of 2016 filed on 13.10.2016.]

4. The respondents entered appearance through their counsel who filed his Vakalatnama on 30.11.2016. However, as the respondents did not even file a written statement and were not conducting the proceedings diligently, they were set ex-parte by the Trial Court on 14.02.2018. Eventually on 20.08.2018, the Trial Court passed an exparte decree and further directed the respondents to execute the registered sale deed in favour of the appellants within six months after the appellants deposit balance sale consideration.

5. It is in the above-referred background that the respondents approached the Trial Court by filing two applications. The first application, (I.A. No. 493 of 2021) was for condoning the delay in filing the application for setting aside the ex-parte decree and the second application (I.A. No. 1163 of 2021) was for setting aside the ex-parte decree dated 20.08.2018. By its judgment dated 29.09.2023, the Trial Court took up I.A. No. 493 of 2021 which was only for condoning the delay and dismissed it. The Trial Court felt that the delay of 939 days was not sufficiently explained. The relevant portion of the order is as under:

“10. Now-a-days E-courts website is available to check the status of the case and even the petitioner is not prevented from coming to the court for approaching section officers to know the status of their case but the petitioner kept quite till 2021 by sleeping over his rights and now he came up with the present petition to set aside exparte decree and to condone the delay of 939 days, which is more than