2023 Supreme(All) 2417
IN THE HIGH COURT OF ALLAHABAD
RAJNISH KUMAR, J.
Narendra Bahadur - Petitioner
Versus
District Judge-Lakhimpur Khiri And Ors. - Respondents
MATTERS UNDER ARTICLE 227 NO. 1268 OF 2021.
Decided On : 08-12-2023
Advocates appeared:
For the Petitioner: Raghaw Ram Upadhyay, Surendra Kumar Verma.
For the Respondents: Prabhakar Vardhan Chaudha, Surya Prakash.
The court affirmed that a delay in challenging a decree cannot be condoned without sufficient cause, especially when the application lacks an adequate explanation for prolonged inaction.
Headnote:(A) Code of Civil Procedure, 1908 - Order 9, Rule 13 - Condonation of delay - Application for setting aside ex-parte decree filed after a delay of more than 14 years admitted lack of explanation for such delay - Lower court's condonation of delay and decision to set aside earlier decree deemed unsustainable as no sufficient cause was shown. (Paras 2, 6, 10)
(B) Grounds for review - Tenets established that delay cannot be condoned without adequate reasoning. If the explanation is concocted or negligent, it is legitimate to dismiss the application for condonation of delay. (Paras 8)
Facts of the case:
The petitioner sought execution of an ex-parte decree from 2004, which was challenged by respondents after a lengthy period without adequate reasoning for the delay. Respondents had knowledge of the decree as early as 2016 but waited two years to act.
Findings of Court:
The delay in challenging the decree was inordinate and unexplained.
Issues: The court focused on whether sufficient cause was shown for condoning the delay in filing the application under Order 9, Rule 13 CPC.
Ratio Decidendi: The court emphasized that a delay of over two years without sufficient explanation cannot be condoned, thus allowing the petitioner’s claim.
Result: Petition allowed; impugned orders set aside, and the application under Order 9, Rule 13 CPC dismissed.
| Table of Content |
|---|
| 1. background of the case and execution proceedings. (Para 1 , 2 , 5 , 6) |
| 2. arguments regarding the condonation of delay. (Para 3 , 4 , 7) |
| 3. supreme court precedent on explanatory delays. (Para 8 , 9) |
| 4. decision not to remit due to lack of sufficient explanation. (Para 10 , 11) |
| 5. final order set-asiding previous judgments. (Para 12) |
JUDGMENT
Rajnish Kumar, J.
Heard Shri R.R. Upadhyay, learned counsel for the petitioner and Shri P.V. Chaudhary, learned counsel for the respondent nos.3 to 5. The respondent nos.1 and 2 are the court concerned.
2. This Court had passed the following order on 06.12.2023, recording the arguments of learned counsel for the parties:-
"1. Sri R.R. Upadhaya, learned counsel for the petitioner submits that the petitioner had filed a suit bearing No.365 of 2002 for recovery of money because the agreement to sale executed by the father of the respondent nos. 3 to 5 was not performed and the sale deed was not executed, whereas the money was taken from the petitioner. The father of the respondent nos. 3 to 5 appeared in the proceedings and filed his written statement. Thereafter he did not appear, therefore the suit was allowed exparte by means of the judgement and decree dated 12.01.2004. The petitioner filed application for execution of decree in the year 2004 itself bearing No.32 of 2004, in which the notices were served on the respondents but none appeared. The execution case was dismissed for non-prosecution on 30.08.2014. The petitioner had filed an application for recall of the said order. On which, the notices were issued and the respondent nos. 3 to 5 had put in appearance and made oral objections. After hearing learned counsel for the parties, the order dated 30.08.2014 passed in Execution Case No.32 of 2004 was recalled in Misc. Case No.106/2014 by means of the order dated 29.09.2016 on cost of Rs.500/- and the case was restored. In pursuance thereof, cost was also received by learned counsel for the respondent nos. 3 to 5. Thereafter, the land in dispute was auctioned on 15.02.2018 for compliance of the aforesaid judgment and decree dated 12.01.2004 and the auction sale was concluded in favour of the petitioner. In pursuance thereof, the petitioner had deposited the required money but the same has not been confirmed and time and again the date was adjourned.
2. He further submits that the respondent nos.3 to 5 filed a highly time barred application on 17.10.2018 under Order 9, Rule 13 CPC before the trial court for setting aside the exparte judgment and decree dated 12.01.2004 admitting in paragraph 3 that they came to know when they had received summons in regard to the restoration application of the execution case. Thereafter, after arranging money they are moving the application. Therefore, admittedly, the respondents no.3 to 5 had got knowledge of the judgment and decree dated 12.01.2004 in the year 2016 and they had also filed their vakalatnama on 20.09.2016 of Sri Vijay Kumar Tripathi, Advocate and only thereafter the execution case was restored by means of the order dated 29.09.2016 after hearing their counsel also. The petitioner had filed objection to the application moved by the respondent nos. 3 to 5. But without considering the same, the delay of more than 14 years has been condoned without assigning any reason and the application under Order 9, Rule 13 of C.P.C. has also been allowed by means of the order dated 21.10.2019.
3. He further submits that against the said order, the petitioner had filed revision, which has also been dismissed by means of the order dated 24.11.2020 without considering the grounds raised by the petitioner, though the judgments relied by learned counsel for the petitioner have been reproduced but not considered and the revision has been dismissed without assigning any reason.
4. In view of the aforesaid arguments of learned counsel for the petitioner, learned counsel for the respondents submits that though they have taken a plea in the counter a
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