IMPORTANT POINTS
(1) An order of Supreme Court, passed upon judicial consideration, attains finality unless set aside through appropriate appellate or review mechanisms.
(2) Limitation - Delay should not be condoned merely as an act of generosity - Pursuit of substantial justice must not come at cost of causing prejudice to opposing party.

JUDGMENT :

SATISH CHANDRA SHARMA, J.

1. Leave granted.

2. The present appeal is arising out of order dated 25.04.2023 passed by the Madurai Bench of Madras High Court in C.R.P. (MD) No. 1113 of 2023 and CMP (MD) No. 5363 of 2023 (hereinafter “Impugned Order”).

3. The aforesaid order was arising out of order dated 08.02.2023 passed by the Principal District and Sessions Judge, Ramanathapuram (hereinafter “Trial Judge”) by which the Trial Judge has dismissed I.A. No. 1 of 2022 in unnumbered A.S. No. of 2022 on the file of the Court.

4. The facts of the case reveal that a sale agreement was executed on 17.08.2015 between the plaintiff (hereinafter “Appellant”) and defendant (hereinafter “Respondent No. 1”) for a consideration of Rs. 3 lakhs in respect of the suit property situated at Nainarkoil @ Naganathasamoothiram Village. The Respondent No. 1 in the present case failed to execute the sale deed pursuant to the sale agreement dated 17.08.2015 and in those circumstances, the Appellant preferred a civil suit before the Sub Court, Paramakudi, on 21.09.2015 i.e. O.S. No. 110/2015, praying for relief of specific performance of sale agreement dated 17.08.2015. The facts further reveal that during the pendency of the aforesaid suit, the Respondent No. 1 executed a sale deed in favour of defendant no. 2 (hereinafter “Respondent No. 2”) on 26.11.2015. In the civil suit i.e. O.S. No. 110/2015, both the defendants filed their written statement; however, at a later stage, stopped appearing in the matter and in those circumstances, the defendants were proceeded against ex-parte on 07.02.2017. The trial court finally passed an ex-parte decree on 07.02.2017 and the Appellant thereafter preferred an Execution Petition i.e. E.P. No. 10/2017. On account of execution proceedings, the sale deed was also executed in favour of the Appellant.

5. The Respondent No. 1 and Respondent No. 2 preferred two separate applications under Order IX Rule 13 of the Code of Civil Procedure (hereinafter “CPC”) i.e. I.A. No. 119/2015 and I.A. No. 462 of 2018 along with applications for condonation of delay of 712 and 467 days respectively, and the trial court allowed both the applications i.e. I.A. No. 462 of 2018 and I.A. No. 119/2018 vide order dated 19.08.2019, setting aside ex-parte decree order and condoned the delay.

6. The Appellant preferred a revision before the High Court by filing CRP(MD) No. 1688 and 1689 of 2019 and the same was allowed by the High Court vide order dated 09.11.2021. The Respondents being aggrieved by the order of the High Court, dated 09.11.2021 preferred Special Leave Petition (C) Nos. 2054-2055 of 2022 and this Court dismissed the said Special Leave Petitions by an order dated 25.02.2022 meaning thereby that the ex-parte judgment and decree came to be affirmed by this Court.

7. The Respondents, after the matter attained finality, on account of dismissal of Special Leave Petitions vide order dated 25.02.2022, initiated the second round of litigation by preferring an appeal against the ex-parte judgment and decree. The appeal was barred by limitation and, therefore, an application was also filed for condoning the delay of 1116 days in filing appeal under Order XLI Rule 3A read with Section 151 of the CPC before the First Appellate Court. The First Appellate Court by an order dated 08.02.2023 dismissed the I.A. No. 1 of 2022 in unnumbered A.S. No. of 2022 which was for condonation of delay of 1116 days and being aggrieved by the order passed by the first Appellate Court, dated 08.02.2023, a revision was preferred before the High Court i.e. C.R.P.(MD) No. 1113 of 2023. The High Court, after hearing the parties has set aside the order dated 08.02.2023 vide Impugned Order dated 25.04.2023 upon a payment of costs of Rs. 1 lakh, meaning thereby a delay of 1116 days was condoned by the High Court. The operative paragraph of the order passed by the High Court reads as under:

“19. Considering the fact that the respondent has been put to inconvenience by t