Dharmajan vs Ramya

Amit Rawal, J

Against the ex parte judgment and decree for return of the gold ornaments rendered in O.P.OS No.566 of 2010 dated 19.04.2013 present appeal with the application for condonation of delay of nine and half (91/2) years i.e., three thousand and seven hundred (3700) days has been preferred by making the following averments in paragraph No.5 of the affidavit accompanying the application for condonation of delay:

“It is respectfully submitted that, the fair copy of the impugned order was received by me on 17.11.2022. That the time for filing the appeal before this Hon’ble Court expired on 23.05.2013. But in the meanwhile, the appellants had filed two IAs before the Family Court below as IA 1/2022 filed under Order 9 Rule 13 of the Code of Civil Procedure to set aside the ex parte decree dated and also filed another IA as IA no. 2/2022 for condoning delay of 3700 days. The appellants also pleaded the reasons for such delay. The 2nd respondent was working in Indian Army and couldn’t come home. The 1st appellant was seriously ill due to heart problems and the 2nd appellant had to take care of the 1st appellant herein due to which they couldn’t appear before the court below. But the learned Family court judge did not accept this reasoning for non-appearance. Due to said reason they were set ex-parte and the case was decreed ex-parte subsequently. Also, the appellants herein failed to follow-up with the family court counsel at the right time with respect to the developments in their case which added to further delay. Now that, only on 30.05.2023, the appellants were able to find a lawyer at Ernakulam and entrust the required files for drafting the present appeal.”

The aforementioned averments does not suffice the requirement of provisions of Section 5 of the Limitations Act for condoning each every days of delay much less even a month’s delay have not been explained as required in law, rather there was an admission that they did not follow up with the counsel before the Family Court. Even there is no averment as to how and in what manner they inquired about the ex parte judgment. The certified copy was stated to have been applied on 10.11.2022 and after that it took more than six months to find and engage a lawyer at Ernakulam on 30.05.2023.

We are of the view that such a tardy approach in contesting the ex parte decree does not require any interference or concession. No ground for interference is made out. Application for condonation of delay is dismissed, consequently the appeal stands dismissed.