Condonation of delay under Section 5 of the Limitation Act is a discretionary power that must be exercised only when the applicant establishes sufficient cause; it cannot be invoked as a matter of right when there is an inordinate, unexplained delay, especially where alternative remedies exist in execution proceedings.

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT OF DECREE DATED 15.04.2016 PASSED IN R.A.NO.60/2011 ON THE FILE OF THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE, BELAGAVI THEREBY DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 08.12.2010 PASSED IN O.S.NO.409/2007 ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE, BELGAUM TO MEET THE ENDS OF JUSTICE AND EQUITY.

THIS APPEAL, COMING ON FOR HEARING THIS DAY, THE JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: THE HON'BLE MRS JUSTICE GEETHA K.B.

ORAL JUDGMENT

1. Heard arguments of both sides on I.A.No.1/2023.

2. I.A.No.1/2023 is filed under Section 5 of the Limitation Act to condone delay of 1630 days in filing the second appeal.

3. It is stated in the affidavit annexed to I.A.No.1/2023 that, Respondent No.1 - Company has filed the suit for recovery of the suit amount with interest, and judgment was passed on 08.12.2010, which was challenged before the First Appellate Court in R.A.No.60/2011, which was dismissed on 15.04.2016 by confirming the judgment and decree of the Trial Court. In the Trial Court judgment, there was a direction to plaintiff to file fresh calculation towards the alleged balance amount, as the amount sought by plaintiff was rejected by the Trial Court.

4. During 2019, plaintiff has filed memo with fresh calculation, which was not considered by the Trial Court vide its order dated 13.08.2019. Since there is no fresh calculation towards alleged balance amount, there is no decree in the present suit for execution. Appellant came to know about pendency of Execution Petition No.99/2020 filed by Respondent No.1. Appellant came to know that Respondent No.1 is seeking to execute the decree which does not exist. Respondent No.1 exaggerated the amount of ₹47,67,990/- based on erroneous calculation, which was rejected by the Trial Court and no balance amount specified is to be executed. Respondent No.1 suppressed the said fact and tried to file fresh calculation in 2019, which was rejected. Appellant entered its appearance in the Execution Petition on 10.10.2022. Thus, there is no delay in filing the present second appeal, as after rejection of fresh calculation there was no attempt made by Respondent No.1 to get the balance amount specified. The appeal is well within limitation. However, as a matter of abundant caution, the present I.A. is filed. Hence, prayed for allowing the annexed I.A.No.1.

5. Learned counsel for Respondent No.1 has filed objections to I.A.No.1 stating that the application is frivolous and not maintainable in law. The delay of 1630 days is not at all explained in the affidavit annexed to I.A.No.1 to condone the same. It is settled position of law that condonation of delay is not a matter of right but a discretionary remedy provided by the Court, which can be exercised only if the applicant establishes sufficient cause for the delay. Hence prayed for dismissal of I.A. with exemplary costs.

6. Having heard the arguments of both sides on I.A.No.1/2023, and on perusal of the records and other documents available on file, the point that arises for consideration is;

“Whether the appellant Company proves that it was prevented by sufficient cause from filing the appeal within the prescribed period of limitation”

7. The finding of this Court on the above point is in NEGATIVE for the following:

REASO