Case Note & Summary
The applicant, original defendant in a suit for specific performance of a Memorandum of Understanding dated 26-10-2007, faced an ex parte decree on 08-03-2013. He claimed knowledge of the decree on 18-12-2014 and filed an application under Order IX Rule 13 CPC to set it aside, which was initially dismissed on 20-03-2015. The appeal against that dismissal was allowed on 20-03-2017 with a remand, and the trial court set aside the ex parte decree on 27-10-2017. However, the plaintiff's civil revision against that order was allowed on 27-02-2018, restoring the ex parte decree. The applicant then challenged that order before the Supreme Court, which was pending. On 21-06-2018, the applicant filed an appeal under Section 96 CPC against the original decree along with an application for condonation of delay of 5 years and 75 days. The court considered whether the time spent in pursuing the Order IX Rule 13 proceedings could be excluded. The court held that the pendency of proceedings for setting aside the ex parte decree does not constitute sufficient cause for condoning the delay in filing the appeal against the original decree, as the applicant could have filed the appeal simultaneously. The application for condonation of delay was dismissed, and consequently, the appeal was also dismissed.
Headnote
A) Limitation Act - Condonation of Delay - Section 5 - Pendency of proceedings for setting aside ex parte decree does not constitute sufficient cause for condoning delay in filing appeal against original decree - The applicant, original defendant, sought to challenge an ex parte decree passed on 08-03-2013 by filing an appeal under Section 96 CPC on 21-06-2018, with a delay of 5 years and 75 days. The court held that the time spent in pursuing the application under Order IX Rule 13 CPC and subsequent proceedings cannot be excluded for computing limitation for the appeal, as the applicant could have filed the appeal simultaneously. The application for condonation of delay was dismissed. (Paras 1-6)
Issue of Consideration
Whether the period during which the applicant was pursuing proceedings for setting aside an ex parte decree can be excluded for the purpose of computing limitation for filing an appeal against the original decree.
Final Decision
The application for condonation of delay is dismissed. Consequently, the appeal (First Appeal (ST.) No.17594 of 2018) is also dismissed.
Law Points
- Limitation Act
- 1963
- Section 5
- Condonation of delay
- Order IX Rule 13 CPC
- Section 96 CPC
- Pendency of other proceedings does not extend limitation for appeal
Case Details
2018 LawText (BOM) (12) 68
Civil Application (F) No.3487 of 2018 in First Appeal (ST.) No.17594 of 2018 in S.C. Suit No.3877 of 2008 (High Court Suit No.1467 of 2008)
Shri Sanjay Jain, Advocate, instructed by Shri Ashok M. Saraogi, Advocate for applicant; Shri Mayur Khandeparkar, Advocate, instructed by Shri Mehul A. Shah, Advocate for non-applicant
Abdul Hameed Abdul Gai Shaikh
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Nature of Litigation
Civil application for condonation of delay in filing an appeal against an ex parte decree in a suit for specific performance.
Remedy Sought
The applicant (original defendant) sought condonation of delay of 5 years and 75 days in filing the appeal under Section 96 CPC against the ex parte decree dated 08-03-2013.
Filing Reason
The applicant claimed that he was pursuing proceedings for setting aside the ex parte decree under Order IX Rule 13 CPC, which he believed justified the delay.
Previous Decisions
The trial court decreed the suit ex parte on 08-03-2013. The applicant's application under Order IX Rule 13 was dismissed on 20-03-2015, but on appeal, this court remanded the matter on 20-03-2017. The trial court then allowed the application on 27-10-2017, but the civil revision filed by the respondent was allowed on 27-02-2018, setting aside that order. The applicant's challenge to the revision order is pending before the Supreme Court.
Issues
Whether the delay of 5 years and 75 days in filing the appeal under Section 96 CPC should be condoned on the ground that the applicant was pursuing other proceedings to set aside the ex parte decree.
Submissions/Arguments
The applicant argued that the time spent in pursuing the application under Order IX Rule 13 CPC and subsequent proceedings should be excluded for computing limitation for the appeal.
The respondent opposed the condonation, contending that the applicant could have filed the appeal simultaneously and that the pendency of other proceedings does not constitute sufficient cause.
Ratio Decidendi
The pendency of proceedings for setting aside an ex parte decree under Order IX Rule 13 CPC does not constitute sufficient cause for condoning the delay in filing an appeal against the original decree under Section 96 CPC, as the applicant could have filed the appeal simultaneously. The time spent in such proceedings cannot be excluded for computing limitation.
Judgment Excerpts
This application for condonation of delay has been filed by the original defendant who seeks to challenge the decree passed by the trial Court on 08-03-2013, by filing an appeal under Section 96 of the Code of Civil Procedure, 1908, which has been filed beyond the period of limitation.
The period of delay as stated is of 5 years and 75 days.
In view of the fact that the applicant was pursuing proceedings for setting aside the ex parte decree by filing an application under the provisions of Order IX Rule 13 of the Code, the time spent therein ought to be excluded.
Procedural History
The suit for specific performance was decreed ex parte on 08-03-2013. The applicant filed an application under Order IX Rule 13 CPC on 18-12-2014 (knowledge of decree), which was dismissed on 20-03-2015. Appeal From Order No.537 of 2015 was allowed on 20-03-2017 with remand. The trial court allowed the application on 27-10-2017. The respondent's Civil Revision Application No.12 of 2018 was allowed on 27-02-2018, setting aside the trial court's order. The applicant's challenge to that order is pending before the Supreme Court. The present appeal under Section 96 CPC was filed on 21-06-2018 with an application for condonation of delay.
Acts & Sections
- Code of Civil Procedure, 1908: Section 96, Order IX Rule 13
- Limitation Act, 1963: Section 5
