The right to appeal is substantive; however, significant delay must be justified with bona fide reasons, which were not established in this case.

ORDER :

(C. Kumarappan J.)

The appellant herein is the first defendant before the learned Single Judge. The first respondent herein is the plaintiff, and the respondents 2 and 3 herein are the defendants 2 and 3 in C.S.No.624 of 2005.

2. CMP.No.6947 of 2022 is filed to condone the delay of 3814 days in filing the connected OSA, against the decree and judgment passed in C.S.No.624 of 2005 dated 15.06.2010. Similarly, CMP.No.6949 of 2022 is filed by the subsequent purchaser qua Mr.Shanmugadurai, being third party to the suit, seeking leave to file an appeal against the very same decree and judgment.

3. For the sake of convenience, the parties will be referred to according to their litigative status in C.S.No.624 of 2005.

4. The brief facts which are germane and give rise to the instant CMPs are as follows:-

(a). Originally, the first respondent herein filed a suit for specific performance in C.S.No.624 of 2005, wherein an ex parte decree was passed on 15.06.2010. Aggrieved with the said ex parte decree, the appellant herein filed an application to set aside the ex parte decree along with an application to condone the delay. The delay condonation application is A.No.2693 of 2011. The application to set aside the ex parte decree is A.No.910 of 2016. Apart from the above two applications, the subsequent purchaser Mr.Shanmugadurai also filed an application in A.No.911 of 2016 to implead himself as a party to the above suit. The learned Single Judge vide order dated 13.07.2016 allowed all the 3 applications.

(b). Aggrieved with the above 3 orders, the plaintiff preferred 3 OSAs in OSA.Nos.418, 420 and 421 of 2018. The Division Bench of this Court has allowed all the OSAs vide order dated 25.10.2019. Not satisfied with the order of the Division Bench, the first defendant and the subsequent purchaser Mr.Shanmugadurai preferred an SLP before the Hon'ble Supreme Court, and the Hon'ble Supreme Court in SLP (Civil) Diary No.11836 of 2020 dated 25.01.2021 dismissed the appeal by confirming the order passed in all 3 OSAs.

(c). After this first round of litigation, under the guise of preferring appeal under Section 96(2) of CPC, the first defendant has come up with a CMP in CMP.No.6947 of 2022 for condonation of delay of 3814 days in filing the appeal against the ex parte decree in C.S.No.624 of 2005. Similarly, the subsequent purchaser, who was not a party to the above civil suit, preferred CMP.No.6949 of 2022, seeking leave to file separate appeal against the above ex parte decree. It is these applications which are before us for consideration.

5. Heard Mr.R.Syed Mustafa, learned counsel for the petitioner in CMP.No.6947 of 2022, Mrs.Y.Kavitha, learned counsel for the petitioner in CMP.No.6949 of 2022, and Mrs.Vijayakumari Natarajan, learned counsel appearing for the first respondent in both CMPs.

6. The learned counsel appearing for the appellant/first defendant in CMP.No.6947 of 2022 would vehemently contend that, though their attempt to set aside the ex parte decree become unsuccessful, the right to prefer an appeal under Section 96(2) of CPC and Order 43 Rule 1 of CPC is well protected. It is his further contention that, though there is a delay of 3814 days in filing the connected OSA, the above delay is neither willful nor wanton, but, only on the bona fide ground of prosecuting the order passed in earlier applications to condone the delay and to set aside the ex parte decree, up to the Hon'ble Supreme Court. It is the further contention of the learned counsel for the first defendant that his valuable property has been snatched by the plaintiff in collusion with the 2^nd defendant. The learned counsel would further contend that right to appeal is not a mere matter of procedure and the same is a substantive right. Thus, he contended that, to protect such substantive right, the delay of 3814 days needs to be condoned. It is further contended that the delay has been occasioned only due to the bona fide prosecution against the ex parte decree up to t