Point of Law: Power to condone the delay, but whether delay should be condoned or not would depend upon the facts and circumstances of each case

ORDER:

Heard Mr.A.Venkatesh, learned counsel for the petitioner.

2. This revision petition has been filed under Article 227 of the Constitution of India against the order dated 27.04.2021 passed by the court of Additional Metropolitan Sessions Judge, Nampally, Hyderabad in E.A.No.1 of 2021 arising out of E.P.No.2 of 2018.

3. Dr.D.Prasada Rao, as the plaintiff, had filed O.S.No.197 of 1998 wherein Share Medical Care and the petitioner/Mediciti Hospital were arrayed as defendants. The suit was decreed by judgment and order dated 23.03.2006. Unfortunately, a copy of the judgment and order has not been annexed to the revision petition. On a query by the court, learned counsel for the petitioner, who is the judgment debtor, submits that it was a money decree. From the materials on record, it is seen that the suit was decreed by directing defendant Nos.1 and 2 to pay a sum of Rs.29,25,657.00 together with interest @ 12% per annum from the date of filing the suit till the realization of the amount. Plaintiff, as the decree holder, initiated execution proceedings being E.P.No.2 of 2018. In the execution proceedings, though learned counsel for the judgment debtor No.2 was present, counter was not filed. Therefore, the executing court passed an order on 20.09.2019 ordering closure of filing of counter and calling the decree holder to tender evidence on 27.09.2019.

4. Petitioner filed a petition under Order XXI Rule 106 of the Code of Civil Procedure, 1908 for recall of the said order and to allow judgment debtor No.2 to file counter. Since there was delay of 142 days in filing the said petition, an application under Section 5 of the Limitation Act, 1963 was filed read with Section 151 of the Code of Civil Procedure, 1908 for condonation of delay.

5. By the impugned order dated 27.04.2021, learned court below dismissed the petition for condonation of delay.

6. Aggrieved, the present revision petition has been filed.

7. At the outset, it may be mentioned that the related execution proceedings pertain to execution of a money decree dated 23.03.2006. More than 15 years have gone by till date and the decree has still not been complied with. It appears that defendants have also not challenged the judgment and order in appeal. Thus, the said judgment and order dated 23.03.2006 has attained finality. In the execution proceedings, counter was not filed by the petitioner, who is judgment debtor No.2. Accordingly, the opportunity for filing counter was closed and the execution petition was fixed for tendering of evidence by the decree holder. It was thereafter that the related application under Order XXI Rule 106 of the Code of Civil Procedure, 1908 was filed, accompanied by the application for condonation of delay.

8. Learned court below rejected the said application for condonation of delay by holding as follows:

Perused the record. As per the record, the petition is coming for counter of the petitioner since 14.08.2019 and the petitioner was set ex parte on 20.09.2019 and this application is filed on 23.02.2021. The petitioner pleaded his ill health to give material instructions to his counsel for filing counter and to take steps for filing the present application. However, for the reasons best known to the petitioner, no material/record is filed in support of the same. Further, the petitioner has excluded the period in computing the delay on the ground that the limitation is extended by the Hon’ble Supreme Court in calculating the period. However, the Hon’ble Supreme Court held that in computation of the period, in cases where the limitation would have expired during the period between 15.03.2020, the benefit excluding the period and having 90 days period will apply.

In this context, it is pertinent to note that Rule 106(3) of Order XXI specifies that within 30 days from the date of order or from the date of knowledge, the application for setting aside the orders can be filed. As the counsel for the petitioner was present on the date of order, the know