JUDGMENT :

Subhendu Samanta, J.

1. The instant appeal has been preferred against the order dated May10th, 2022 passed by the learned 2nd Court of Civil Judge (Senior Division) at Alipore in Misc. case No. 28 of 2021 (East Coast Private Limited Versus Railway Supply Corporation Private limited).

2. The respondent herein had filed a suit before the learned court below being Title Suit No. 8305 of 2014 against the present appellant for eviction and recovery of Khas possession of the subject premises together with a decree for mesne profit and other reliefs.

3. The appellant/defendant contested the suit by filling a written statement where they categorically denied all allegations of the respondent/ plaintiff with some positive assertion that they have paid the rent according to the agreement and were not liable to be evicted.

4. During the continuation of the suit trial commenced and respondent/plaintiff has produced their witness on dock and has been successfully examined and cross-examined and discharged.

5. Since then the appellant/defendant took some adjournments for quite a considerable period of time and when the date was fixed for examination of defendant’s witness, the appellant/defendant did not produce a witness and consequently learned court below after hearing the respondent/plaintiff decreed the suit on 24.07.2019.

6. By the decree learned court below directed the appellant/ defendant to quit and vacate the suit property within 90 days from the date of passing of the decree.

7. Thereafter the appellant /defendant preferred a miscellaneous case being No. Misc 28 of 2021 under order 9 Rule 13 CPC for setting aside of the ex-parte decree supported by an application under Section 5 of Limitation Act for condonation of delay.

8. The matter was contested by the respondent/plaintiff by filling written objections against both the applications.

9. By the impugned order made on 10.05.2022 the learned court below rejected the application filled by the appellant under Section 5 of Limitation Act. Consequently, the Misc. case preferred under Order 9 Rule 13 of the Code of Civil Procedure was also not admitted.

10. Hence this appeal.

11. The grounds which were stated before the learned court below for non appearance the appellants at the time of hearing of the suit are as follows:-

There are two directors of the appellant/defendant Company viz Smt. Sushila Gupta and Mohit Gupta. Sushila gupta used to look after the Suit on behalf of the Company.

12. At the time of evidence of the defendant’s witness, both the directors of the appellant/defendant had been staying at Delhi for a considerable period of time. Due to old age and worsening mental health, of Srimati Sushila Gupta (one of the directors), who was looking after the suit could not instruct their Advocate properly; consequently no steps were taken on behalf of the defendant company. However, the director Srimati Sushila Gupta died after the ex-parte decree was passed and the other director Mohit Gupta only came to know about the status of the suit in March 2020 when execution proceeding was on the way. Due to pandemic and consequent lock-down no steps could be taken by the defendant company and they had no intentional laches for not appearing on the date of hearing of this case.

13. Learned court below disbelieved the contentions of the appellant, no show cause notice was required to be issued for the execution proceeding according to order 21 Rule 22 CPC as the execution proceeding was initiated within 2 years of the date of the decree.

14. The Learned court below was also of the opinion that the individual incapacity of the directors cannot be held as incapacity on the part of the defendant company which has a separate identity. So, learned court below has dismissed the application under Section 5 of Limitation Act and did not consider the plea of personal inconvenience of one of the directors of the defendant Company.

15. Learned advocate for the appellant submitted before this court that