1. Application under section 5, Limitation Act, 1963 for condonation of delay in filing application to set aside ex parte judgment and award. (Para 1 , 2 , 3 , 4 )
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2026 Supreme(Sikk) 48
THE HIGH COURT OF SIKKIM: GANGTOK
BHASKAR RAJ PRADHAN, J.
Aita Maya Gurung W/o Late Ratna Man Gurung – Appellants
Versus
Ratna Kumar Pradhan S/o Late R.M. Pradhan – Respondents
I.A. No.01 of 2025 (Arising out of) MAC. Appeal No.02 of 2022
Decided On : 01-10-2026
Important Points
Delay in filing an application to set aside an ex parte judgment may be condoned under Section 5 of the Limitation Act if the court records lack confirmation that the party was duly served with notice before the judgment was pronounced.
Subject
Civil Law - Procedural Law
Act Referred
Headnote
(A) Limitation Act, 1963 - Section 5 and Article 123 - Code of Civil Procedure, 1908 - Order IX Rule 13 read with Section 151 - Condonation of delay in filing application to set aside ex parte judgment and award - Where court records fail to show satisfaction that notice was duly served upon the respondent before the pronouncement of an ex parte judgment, the delay in filing an application to set aside such judgment ought to be condoned to allow the matter to be heard on its merits. (Paras 5, 6)
Facts of the case:
An application was filed under Section 5 of the Limitation Act, 1963, seeking condonation of delay in filing a request to set aside an ex parte judgment and award. The applicant contended that the delay was unintentional, as knowledge of the order was only obtained upon receipt of a notice regarding a contempt petition. While the contesting parties argued that there was a substantial delay of over a year and a half, the applicant claimed the delay was only 32 days from the date of knowledge. Upon perusing the records, the court observed that although notice had been issued and re-issued to the respondent, there was no order on record indicating that the court was satisfied the respondent had been served prior to the judgment being pronounced in open court.
Findings of Court:
The court found that after the order directing the re-issuance of notice to the respondent, there was no subsequent order recording the satisfaction of the court regarding the actual service of that notice. Consequently, the delay in filing the application to set aside the ex parte judgment should be condoned.
Issues: Whether the delay in filing an application to set aside an ex parte judgment should be condoned when the court record does not reflect the successful service of notice upon the affected party.
Ratio Decidendi: If the court's own records do not demonstrate that a party was duly served with notice before an ex parte decree was passed, the delay in applying to set aside that decree should be condoned to ensure the case is decided on its merits.
Result: The delay is condoned. The application is allowed and disposed of.
Facts of the case:
An application was filed under Section 5 of the Limitation Act, 1963, seeking condonation of delay in filing a request to set aside an ex parte judgment and award. The applicant contended that the delay was unintentional, as knowledge of the order was only obtained upon receipt of a notice regarding a contempt petition. While the contesting parties argued that there was a substantial delay of over a year and a half, the applicant claimed the delay was only 32 days from the date of knowledge. Upon perusing the records, the court observed that although notice had been issued and re-issued to the respondent, there was no order on record indicating that the court was satisfied the respondent had been served prior to the judgment being pronounced in open court.
Findings of Court:
The court found that after the order directing the re-issuance of notice to the respondent, there was no subsequent order recording the satisfaction of the court regarding the actual service of that notice. Consequently, the delay in filing the application to set aside the ex parte judgment should be condoned.
Issues: Whether the delay in filing an application to set aside an ex parte judgment should be condoned when the court record does not reflect the successful service of notice upon the affected party.
Ratio Decidendi: If the court's own records do not demonstrate that a party was duly served with notice before an ex parte decree was passed, the delay in applying to set aside that decree should be condoned to ensure the case is decided on its merits.
Result: The delay is condoned. The application is allowed and disposed of.
Legal Category Hierarchy
- practice and procedure
-
contempt of court
- contempt petition (Para 4)
Advocates appeared:
Ms. Tashi Doma Bhutia, Ms. Pritima Sunam, Ms. Pratima Subba Limboo and Ms. Choki Sherpa, Advocates for the Appellants.
Mr. N. Rai, Senior Advocate with Ms. Tara Devi Chettri Advocates for the Respondent No.1.
None for Respondent No.2.
Mr. Kshitij Mittal, Advocate (through V.C.) and Mr. Papai Mondal, Advocate for the Applicant/Respondent no.3
Ms. Tashi Doma Bhutia, Ms. Pritima Sunam, Ms. Pratima Subba Limboo and Ms. Choki Sherpa, Advocates for the Appellants.
Mr. N. Rai, Senior Advocate with Ms. Tara Devi Chettri Advocates for the Respondent No.1.
None for Respondent No.2.
Mr. Kshitij Mittal, Advocate (through V.C.) and Mr. Papai Mondal, Advocate for the Applicant/Respondent no.3
Table of Contents
2. Applicant claims 32-day delay; contesting parties assert 1 year, 8 months, and 20-days delay based on service. (Para 2 , 3 , 4 )
3. Court found no record of satisfaction of service on applicant/respondent, despite multiple notices and orders. (Para 5 , 6 )
4. Delay is condoned to enable hearing on merits where there is no record of due service of notice. (Para 5 , 6 , 7 )
5. Delay condoned; application under section 5, Limitation Act allowed and disposed of. (Para 7 )
6. When may a court condone delay in filing an application to set aside an ex parte decree?
A court may condone delay if there is no record showing the applicant was duly served with notice of the proceedings before the decree. (Para 5 , 6 , 7 )
7. What is the period prescribed under Article 123 of the Limitation Act, 1963 for setting aside an ex parte decree?
Article 123 of the Limitation Act prescribes a period of 30 days from the date of the decree, or from the date of knowledge if summons was not duly served. (Para 3 )
ORDER (ORAL)
Bhaskar Raj Pradhan, J.
1. This is to consider an application under section 5 of the Limitation Act, 1963 for condonation of delay in filing the application for setting aside the ex parte judgment and award dated 17.04.2023 passed by this Court.
2. According to the applicant who was respondent no.3 before this Court in MAC Appeal No.02 of 2022 i.e. Aita Maya Gurung & Ors. vs. Ratna Kumar Pradhan & Ors. there is a delay of 32 days. The learned counsel for the contesting parties asserts otherwise. According to them there is a delay of 1 year 8 months and 20 days.
3. The learned counsel for the applicant draws my attention to Article 123 of the Limitation Act, 1963 which prescribes a period of 30 days from the date of the decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree to set aside a decree passed ex parte or to re-hear an appeal decreed or heard ex parte.
4. The application states that the applicant came to learn about the ex parte order/award dated 17.04.2023 for the first time when they received a summons/notice dated 27.11.2024 issued by the Joint Registrar-cum-Reader regarding contempt petition being I.A. No.01 of 2024 in Contempt Case (C) No.105 of 2024. Accordingly, they took steps, hired an advocate and thereafter approached this Court. It is submitted that the delay was not intentional.
5. As the application relates to a judgment passed by this Court I have perused the orders passed before the judgment was pronounced. It is noticed that notice was issued upon the respondents for the first time on 28.06.2022. Although on the next date i.e. 10.08.2022 the order records that the respondent no.3 was absent despite due service of notice as the online tracking reported delivery of item on 04.07.2022, this Court thought it fit to reissue notice upon the applicant/respondent no.3. Several orders were passed after that until the order dated 17.04.2023 records the passing of the judgment which was pronounced in open court in the absence of the applicant. The order immediately preceding the order dated 17.04.2023 is order dated 02.12.2022 which directs that notice be reissued to applicant/respondent no.3. There is no order which records the satisfaction of this Court that the applicant/respondent no.3 has been served.
6. I am thus of the considered view that the delay in filing this present application ought to be condoned to enable this court to hear on the merits of I.A. No.2/2026 which is an application under Order IX Rule 13 read with section 151 of the Code of Civil Procedure, 1908 for setting aside the ex parte judgment and award dated 17.04.2023 passed by this Court.
7. The delay is condoned. The application is allowed and disposed of.
