A party seeking relief from the court must come with clean hands, and age alone cannot be used as a sufficient reason for condoning delay if the party seeks to take undue advantage of it.

Tarlok Singh Chauhan, Judge (Oral).

The appellant/applicant by medium of this application has sought condonation of 331 days in filing of the appeal. It is claimed that the applicant is an old man of 81 years of age and had a fracture of right hip, for which he was operated. He was not aware of the fact that his appeal pending before the learned District Judge was decided against him on 3.4.2013 as he was not informed of the same by his advocate. It is further alleged that since he was taking treatment for his injuries and is not residing at his native village and it is only in the month of April, 2014 that he came back to the village and contacted his counsel at Hamirpur on 21.4.2014 and he learnt that his appeal had been dismissed on 3.4.2013. It is then claimed that he could not come to Shimla for filing of the appeal as he had suffered minor heart attack and remained bed ridden and thereafter could contact his counsel and drafted the appeal on 14.5.2014, which was filed in this Court on 30.5.2014.

2. The respondent filed reply wherein it was claimed that the grounds taken by the applicant to show sufficient cause were in fact unbelievable, apart from the same being totally false. It has been specifically averred that on 6.12.2013 the respondent had filed execution proceedings against the appellant-applicant in which notice was issued for 14.2.2014 and then the applicant himself had put in appearance through his authorized counsel on 5.4.2014. Thereafter the execution proceedings were listed for filing of objections on 21.5.2014 on which date the applicant did not appear and was proceeded ex-parte. It is further claimed that on 8.3.2014 the applicant entered into a compromise with the respondent at Barsar with respect to the suit land. Copy of the compromise has been annexed as Annexure R-1 to the reply. The respondent has also denied the fact that applicant had suffered a minor heart attack and was bed ridden. It has been specifically stated that on 12.6.2014 the applicant had filed an application to set-aside the exparte order dated 21.5.2014 before the learned trial court, wherein there was no mention about the heart attack. Copy of the application has also been annexed with the reply as Annexure R-2.

3. The applicant has filed rejoinder, wherein he did not deny that appearance on his behalf had been put in by the counsel on 5.4.2014 before the learned Executing Court, but the explanation offered by him is as follows:-

“…..That is further wrong and denied that the applicant is trying to mislead this Hon’ble Court it is also further denied that the applicant was aware about fate of his appeal, as a matter of fact, the counsel who appeared on behalf of the applicant before the executing court on 5.4.2014 was the same counsel who was representing the applicant before the ld. First appellate court, it is also humbly submitted for the completion of facts that the counsel Mr. K.K. Sharma who appeared on behalf of the applicant on 5.04.2014 was already the counsel of the applicant and he filed the POA as these documents were already signed by the applicant at the time when the applicant had engaged the services of the ld. Counsel for contesting the proceedings before Ld. First appellate court and as the respondent filed the execution proceeding before the ld. Executing court the counsel Mr. K.K. Sharma appeared as the counsel of the applicant but as a fact of matter the applicant was not aware about the proceeding pending before the executing court what so ever, it is also pertinent to mention here that on 5.04.2014 the counsel appeared for the applicant and was given time to file Reply/Objections to the execution petition and the matter was finally listed on 21.05.2014, the counsel tried to contact the present applicant but the applicant could not be contacted as he was not aware about the fate of his appeal and hence subsequently when the matter was listed on 21.05.2014 the applicant was proceeded ex-parte as the couns