Kannappan and Jeith Eswar vs V. Varadharajan

Honourable Mr. Justice G. Rajasuria

This Civil Revision Petition has been filed to get set aside the order passed in I.A. No. 159 of 2011 in O.S. No. 7 of 2009 dated 09.12.2011

by the learned Sub Judge, Uthamapalayam. Precisely and pithily, the relevant facts absolutely necessary and germane for the disposal of this Civil

Revision Petition would run thus:

(i) The respondent/plaintiff namely V. Varadharajan filed the suit for recovery of money based on the promissory note and exparte decree was

passed. Thereafter, he filed E.P. to bring the property of the defendants for sale and the sale was also conducted and in that, the decree holder

himself happened to be the successful bidder and thereafter, the sale was confirmed. The mater is now pending for ordering delivery of possession

of the property concerned in favour of the decree holder.

(ii) In the meanwhile, the defendants being the father and the son, filed the application to get condoned the delay of 300 days in filing the

application to get the exparte decree passed by the lower Court set aside. In that application, the counter affidavit was filed by the respondent.

After hearing both sides, the lower Court dismissed the application.

Being aggrieved by and dissatisfied with the order of the lower Court, this Civil Revision Petition has been focussed on various grounds, under

Article 227 of the Constitution of India.

The learned Counsel for the revision petitioners/defendants, placing reliance on the grounds of revision, would develop his arguments, which

could tersely and briefly be set out thus:

(i) The delay of 300 days was not huge. In fact, without adhering to the procedures contemplated under the Code of Civil Procedure, the sale was

effected and it was confirmed in favour of the decree holder himself and no proper notice was issued. Ignoring all these material facts, the lower

Court simply dismissed the application filed u/s 5 of the Limitation Act and Section 151 of the Code of Civil Procedure, to get condoned the delay

of 300 days warranting interference in revision.

(ii) The defendants are ready to deposit the entire decreetal amount in Court and they might be given opportunity to get the matter processed, so

that, they would have an opportunity to contest the suit itself. The property worth about several Crores was sold for pittance and the decree holder

himself snatched away the same. These facts have not been considered by the lower Court. After receipt of notice in the E.P., the defendants took

effective steps to file the application to get the delay condoned in the filing the application to get set aside the exparte decree. Over and above that,

the delay occasioned due to the communication gap between the Advocate, who appeared for the petitioners herein in the lower Court and the

petitioners. The delay was not willful and wanton. However, the lower Court assumed and presumed as though after loosing the opportunity to

challenge the sale, which was confirmed, the petitioners/defendants had chosen to file an application u/s 5 of the Limitation Act, which view was

not correct.

(iii) By placing reliance on the decision of the Honourable Supreme Court in Improvement Trust, Ludhiana Vs. Ujagar Singh and Others, in

support of his contention, he would pray for setting aside the order of the lower Court and for condoning the delay even on heavy costs and also

subject to the condition that the petitioners/defendants should deposit the entire decreetal amount in Court.

Per contra, in a bid to torpedo and challenge the averments as put forth on the side of the revision petitioners, the learned Counsel for the

respondent/plaintiff would detail and delineate, portray and parody the conduct of the revision petitioners/defendants. He would draw the attention

of this Court to the endorsements made by the Executing Court in the E.P. Concerned. The ''B'' Diary extract of the E.P. found enclosed in the

typed set of papers, according to him, would reveal and exemplify, demonstrate and display as to how despite knowledge of the exparte decree

having been passed, no steps were taken by the defendants to file the application as expeditiously as possible.

According to him, now, the suit property has to be delivered to the decree holder who happened to be the auction purchaser who purchased

the property after complying with the procedures contemplated under the CPC and hence, he would pray for the dismissal of this Civil Revision

Petition.

The point for consideration is as to whether the delay of 300 days was unjustifiably not condoned by the lower Court ignoring the reasons found

set out in the affidavit of the revision petitioners/defendants accompanying the I.A. No. 159 of 2011 in O.S. No. 7 of 2009 dated 09.12.2011 on

the file of the Sub Court, Uthamapalayam?

The Point:

At the outset itself, I would like to refer to the decision of the Honourable Supreme Court in Improvement Trust, Ludhiana Vs. Ujagar Singh

and Others, . Certain excerpts from it, would run thus:

The property was put to an auction-sale on 12-8-1992. Respondent 5 herein M/s Jagan Singh and Company (hereinafter shall be referred to as

the Company"") offered Rs 22,65,000, and thus was declared as the highest bidder.

Sale was knocked down in its favour, and later confirmed in its favour.

The appellant then woke up from its slumber and filed objections under Order 21 Rule 90 CPC raising various grounds. The executing court

then framed issues, reproduced by the learned Single Judge in the impugned order. The case was thereafter fixed for recording of the evidence of

the judgment-debtor on 19- 3-1993, 17-4-1993, 8-5-1993 and 29-5-1993. However, on the aforesaid dates none appeared on behalf of the

appellant. Consequently, the evidence of the appellant judgment-debtor was closed. As a necessary consequence thereof the appellant''s

objections came to be dismissed in default due to non-appearance.

* * * * *

Be that as it may, we are of the opinion that the delay in filing the first appeal before the District Judge, Ludhiana, for setting aside the sale has

not been so huge warranting its dismissal on such hypertechnical ground. In fact, according to us, the appellant had taken all possible steps to

prosecute the matter within time. Had there been an intimation sent to the appellant by Mr. P.K. Jain, its erstwhile advocate, and if even thereafter

the appellant had acted callously then we could have understood the negligent attitude of the appellant but that was not the case here. No sooner

the appellant came to know about the dismissal of its objection filed before the executing court, under Order 21 Rule 90 CPC it made enquiries

and filed the appeal.

While considering the application for condonation of delay no straitjacket formula is prescribed to come to the conclusion if sufficient and good

grounds have been made out or not. Each case has to be weighed from its facts and the circumstances in which the party acts and behaves. From

the conduct, behaviour and attitude of the appellant it cannot be said that it had been absolutely callous and negligent in prosecuting the matter.

* * * * *

Apart from the above, the appellant would not have gained in any manner whatsoever, by not filing the appeal within the period of limitation. It

is also worth noticing that delay was also not that huge, which could not have been condoned, without putting the respondents to harm or

prejudice. It is the duty of the court to see to it that justice should be done between the parties.

For the aforesaid reasons the impugned orders passed by the appellate court, and the order passed by the High Court, are hereby set aside

and quashed.

As a consequence, the matter stands remitted to the executing court for deciding the appellant''s application filed under Order 21 Rule 90 CPC at

an early date on merits. Since there are only two contesting parties to the litigation that is to say the appellant and Respondent 5, both would

appear before the executing court on 20-7-2010. Being an old case an endeavour would be made by the executing court to take up the case as far

as possible, on day-to-day basis and no party would seek an undue adjournment in the matter. We make it clear that we have expressed no

opinion on the merits of the matter and any observation made herein would not be construed as an expression of opinion on merits.

A plain reading of the aforesaid decision would exemplify and demonstrate that the delay could be condoned on sound reasons. The factual

matrix involved in the cited precedent was that the application under Order 21 Rule 90 of the Code of Civil Procedure, filed by the judgment

debtor for getting the Court auction sale set aside, was dismissed, as against which appeal was filed with the delay. At that time, the delay was not

condoned by the Court concerned, relating to which the Honourable Supreme Court pointed out that the case was such that the delay ought to

have been condoned.

Here, the factual matrix is entirely different.

Indubitably and indisputably, admittedly and obviously, the Court auction sale was conducted and thereafter, it was also confirmed. I could see

readily no reason for not filing the application under Order 21 Rule Order 21 Rule 89 or 90 of the CPC within the prescribed time limit. The lower

Court in its order adverted to it and commented upon the same as against the revision petitioners pointing up and showing up that having allowed

much water to flow under the bridge, the petitioners/defendants did choose to file the said application in I.A. No. 159 of 2011 to get the huge

delay of 300 days condoned in filing the application to get set aside the exparte decree.

The exparte decree was passed as early as on 28.07.2009 in the suit.

The contention of the defendants was that they were not aware of such passing of exparte decree, for which the lower Court as well as the

learned Counsel for the respondent/plaintiff would highlight that despite receipt of E.P. notice, immediately such application for getting the delay

condoned in filing the application to get set aside the exparte order, was not filed and it is quite obvious and axiomatic from the records. There is

no explanation much less adequate explanation found set out so as to justify the prayer for getting the delay condoned.

I am fully aware of the fact that in appropriate cases, the delay has to be condoned in the interest of ''audi alteram partem'', but, this is a case

where even after filing of the E.P. by way of executing the exparte decree by the decree holder/plaintiff, the defendants were guilty of latches which

could be labelled and described as magna neglegentia which could not in any way be condoned. But for the latches on the part of the revision

petitioners/defendants in participating in the E.P. or for their non-filing of necessary application to get the Court auction sale set aside, the matter

would have been different. The conduct of the petitioners should necessarily be seen. The lower Court correctly adverted to the factual matrix

involved in this case and held that the conduct of the defendants would not in any way enable them to seek for mercy of the Court in exercising the

judicial discretion to get set aside such a huge delay.

In these circumstances, I am of the view that no interference with the order of the lower Court is warranted. The point is answered

accordingly.

However, the learned Counsel for the revision petitioners/defendants would detail and delineate certain deficiencies and improprieties and non-

adherence to methodicalness and punctiliousness as contemplated under law, in the sale conducted by the Executing Court and also as to how the

decree holder allegedly snatched away the property worth about several Crores for pittance a song or for a rock bottom price. It is open for the

revision petitioners herein to work out their remedy in the manner known to law. In the result, this Civil Revision Petition is dismissed.

Consequently, the connected Miscellaneous Petition is dismissed. No costs.