Heard Mr. D.C. Roy, learned counsel appearing for the petitioner as well as Mr. Suman Bhattacharji, learned counsel appearing for the respondent.

[2] This is a petition filed under Section 115 of the C.P.C. questioning the legality of the order dated 21.06.2013 delivered in Civil Misc.38 of 2013 arising out of Title Appeal No.14 of 2013 by the Additional District Judge, No.5, West Tripura, Agartala whereby the delay of 208 days in preferring the appeal has been condoned.

[3] The brief fact as is essential to understand the perspective of the challenge is that the petitioner herein instituted a suit for specific performance of the agreement to sale which has been entered between the petitioner and the respondent on 20.09.2007 (Exbt.1 series). Even the respondent herein received a sum of Rs.2,00,000/- (Rupees two lakhs) as advance as token of acceptance of the said agreement. According to the petitioner, the respondent did not perform his part by executing the sale deed on receiving the remainder of the consideration money despite his readiness as claimed. The petitioner instituted the suit for specific performance as stated. The said suit was decreed on 07.09.2011. The decree dated 07.09.2011 delivered in Title Suit No.81 of 2008 by the Civil Judge, Sr. Division, Agartala, West Tripura, No.1 was initially conceived by the respondent as exparte decree and on that premises, the respondent had approached the court of the Civil Judge, Sr. Division, West Tripura, Agartala, No.1 by filing a petition under Order IX Rule 13 of the C.P.C. for setting aside the exparte decree. But the Civil Judge, Sr. Division, West Tripura, Agartala, No.1 on observing that the decree has not been passed exparteas asserted, and as such, the said petition under Order IX Rule 13 of the C.P.C. cannot be maintained and accordingly, the petition was dismissed.

[4] On the basis of the finding as made, the respondent filed an appeal under Section 96 of the C.P.C. in the court of the District Judge, West Tripura, Agartala challenging the judgment and decree dated 07.09.2011 delivered in Title Suit No.81 of 2008 by the Civil Judge, Sr. Division, Agartala, West Tripura, No.1. The said appeal could not be filed within the period of limitation and hence, the respondent filed a miscellaneous application being Civil Misc. 38 of 2013 along with the said appeal. In the course of time, the said miscellaneous application along with the appeal was transferred to the court of the Additional District Judge, West Tripura, Agartala, No.5 and the matter was heard. By the impugned order dated 21.06.2013, the delay of 208 has been condoned observing that:-

“Since the petitioner filed application under Or.IX r.13 CPC before the Court below thinking that his relief was there in making an application under that section and as ultimately the learned Court below held that relief of the petitioner was there in preferring the appeal, there is no doubt that the period spent i.e. 190 days in pursuing the application under Or.IX r.13 CPC shall be excluded as per Section 14 of the Limitation Act. Hence, the prayer for condonation of 208 days delay in preferring the appeal. It cannot be disputed that Courts are general liberal in dealing with condonation petition. First appeal is a vital stage of the suit for any party. In that view of the matter and considering the reason why the delay was occasioned as stated in detail in the petition, in my opinion for ends of justice the prayer needs to be allowed.”

[5] Mr. D.C. Roy, learned counsel appearing for the petitioner has vehemently submitted that the explanations as provided by the respondent for the delay should have been discarded by the first appellate court inasmuch as those were not correct according to the records as well as those are absolutely flimsy. Moreover, he has submitted that the right of the petitioner by that time got consolidated. It is the public policy that if the right by way of the judgment of a court gets consolidated an