Point of Law: Law of Limitation is founded on public policy to ensure that the parties to a litigation do not resort to dilatory tactics and seek legal remedy without delay and in an application filed under Section 5 of the Act, the court has to condone the delay if sufficient cause is shown.

JUDGMENT :

Ajithkumar, J.

Issue is simple; but intricate. Do the provisions of Section 9 of the Limitation Act (for short ‘the Act’) have application to a motion under Section 5 of the Act?

2. Last day for filing the application for setting aside the ex-parte decree was 20.05.2017, but filed only on 06.04.2019 with a delay of 696 days. Reason for the delay from 20.05.2017 to 19.06.2017 was not explained, but the reason for the remaining period was explained. Section 9 of the Limitation Act says that when the time for filing a suit or making an application starts running, it would not stop on account of a subsequent disability or inability. The learned Sub Judge held that the provisions of Section 9 applies to an application under Section 5 of the Act. Accordingly, the application filed by the appellant for condonation of delay was dismissed saying that the delay from 20.05.2017 to 19.06.2017 was not explained. Legality of the said finding is essentially in question in this appeal.

3. The respondent filed O.S.No.101 of 2016 before the Sub Court, Ernakulam, for realisation of an amount of Rs.25 lakhs, together with its interest from the appellant and his assets. The appellant entered appearance in the suit on 30.07.2016. Time was granted to file written statement, but the appellant did not. As a result, the suit was decreed on 11.04.2017. The appellant filed I.A.No.1497 of 2019 for setting aside the ex-parte decree and I.A.No.1498 of 2019 for condonation of delay of 696 days. The respondent filed a written objection. The Sub Court after recording the oral evidence of the appellant as PW1 and receiving documentary evidence as Exts.A1 to A5, dismissed both the applications. Feeling aggrieved of the said orders, the appellant preferred this appeal.

4. Heard the learned counsel for the appellant and also the learned counsel for the respondent.

5. When we started, we thought that the issue is simple inasmuch as, a literal understanding of Section 9 gives the view that its provisions apply to suits and applications for the execution of decrees only and that too, when extension of period of limitation is claimed on account of legal disability or inability, which are reckoned in Section 6, namely, minority, insanity or idiocy.

6. Section 5 of the Act does not say about extension of period of limitation. It says that where the Court is satisfied that there is sufficient cause, the delay occasioned in filing an appeal or application, other than one under Order XXI of the Code of Civil Procedure, 1908 can be condoned. The ultimate effect of both the provisions may be the same; that the person concerned gets an extended period of time for instituting the proceedings. But the two provisions hold totally different fields and the nature of jurisdiction to be exercised by the Courts is also different. One is extension of the period for the reason of legal disability which can precisely be ascertained, whereas the other is condonation of delay which always is at the discretion of the court. In that view of the matter, we were about to conclude that the finding of the learned Sub Judge is wrong. But the learned counsel appearing for the respondent, Advocate Asha B. Mathew stressed her arguments on the point that for want of explanation of the delay from 20.05.2017 to 19.06.2017, explanation for the delay for the subsequent period cannot be reckoned in view of the bar under Section 9 of the Act. That compelled us to ponder over the question in little depth.

7. The purpose behind enacting the law of limitation was to prescribe a time limit for availing legal remedy for the grievance caused. The idea is that the legal remedy must be kept alive for a period fixed by the legislature [See: Oriental Aroma Chemical Industries Ltd. v. Gujarat Industrial Development Corporation and another [(2010) 5 SCC 459]. The law of limitation limits the time after which a suit or other proceedings cannot be maintained in Court [See: Esha Bhattacharjee v. Managing Committee of