The court emphasized that the discretion to condone delay in filing an appeal is not a matter of right and must be exercised judiciously, considering the merits of the case only when sufficient cause is established.

ORDER :

This Civil Miscellaneous Petition has been filed to condone the delay of 2616 days in filing appeal, challenging the exparte decree and judgment passed on 04.07.2017.

2. According to the petitioners, the respondent has filed a suit for specific performance on the basis of an agreement dated 08.06.2008, which came to be decreed exparte on 04.07.2017. It is averred that the suit itself is barred by time and the Trial Court has not considered the same at the time of passing the exparte decree. It is the case of the petitioners that the exparte decree came to be passed for non filing of written statement. Therefore, the petitioners filed two applications in I.A.Nos.2 and 3 of 2022 to set aside the exparte decree and to condone the delay of 1676 days. Both applications were dismissed, as against which refusing to condone the delay, C.R.P.No.3892 of 2022 was filed before this Court. The said petition was also dismissed by this Court on 29.11.2022, thereby confirming the order of dismissal passed by the Trial Court. Subsequently, C.M.A.No.2596 of 2022 was filed before this Court against I.A.No.3 of 2022, which was dismissed by this Court on 02.04.2024. Further, as against the dismissal of Civil Revision Petition, the petitioners also filed SLP (Civil) Diary No.22411 of 2024 and the Apex Court dismissed the case on 23.08.2024.

3. It is further case of the petitioners that the dismissal of application to set aside the exparte decree does not bar to file an appeal, as the petitioners have been prosecuting the application to condone the delay till 23.08.2024 and thereafter, filed the appeal. The contention of the petitioners is that the 2^nd petitioner met with an accident on 20.11.2023 and suffered injuries in his back bone and therefore, he could not do normal work for nearly a year. That apart, the 1^st petitioner is also not keeping good health and his other son is suffering from cancer. Hence, there is a delay of 2616 days in preferring the appeal and the petitioners seek to condone the delay.

4. A counter affidavit has been filed by the respondent, disputing the reasons. According to the respondent, the petition lacks bonafide and there is no proper reason assigned to condone such huge delay. The suit has been filed for specific performance. Even though the suit was posed on 28.09.2015 and 29.09.2015, the defendants did not appear before the Trial Court and therefore, they were set exparte and the suit was posted for exparte evidence on 13.10.2015. On the said date, the defendants filed applications to set aside the exparte order, which came to be allowed and they were given a chance to file written statement. However, no written statement has been filed till 14.12.2015 and therefore, once again they were set exparte and exparte decree was passed on 04.07.2017. It is stated in the counter affidavit that thereafter, an Execution Petition has been filed in the year 2020 itself and a sale deed has been executed and stamp papers have also been purchased and the matter is now posted for registering the sale deed. It is further stated that the petitioners/defendants have been filing applications one after the other to stall the execution process since 2020 and the CMA filed against the dismissal order was also dismissed by this Court. Hence, it is prayed that such a huge delay cannot be condoned at this stage.

5. Learned counsel for the petitioners would mainly submit that the petitioners have been prosecuting the application to condone the delay in filing to set aside the exparte decree. SLP was dismissed only on 23.08.2024 and the petitioners have been bonafidely prosecuting the application upto Supreme Court to set aside the exparte decree. However, the condone delay application has been dismissed.

6. According to the learned counsel for the petitioners, the sale agreement was entered into on 08.06.2008 and the suit has been filed belatedly and therefore, the petitioners have to be given a chance to contest the matter. Further, it is