Rangamma & Ors vs G Manoj Kumar & Ors

Anant Ramanath Hegde, J

The petitioners seek the review of the order on I.A. No.1/2024 in RFA No.1016/2024. In terms of the said order dated 14.06.2024, this Court has dismissed I.A.No.1/2024 filed by the petitioners seeking condonation of delay of nearly 7 years in filing the appeal and consequently, the Regular First Appeal challenging the judgment and decree in O.S. No.55/2015 on the file of Senior Civil Judge, Channarayapattana is dismissed.

The petitioners urge that the application was dismissed noticing the fact that the petition under Order IX Rule 13 of the Code of Civil Procedure (for short 'Code') filed by the petitioners to set aside exparte decree is also pending consideration before the Trial Court from whose judgment and decree RFA No.1016/2024 was filed.

The petitioners urge that the time spent in prosecuting application under Order IX Rule 13 of the Code is a sufficient cause to condone the delay in filing the Regular First Appeal under Section 96 of the Code and law laid down in this behalf in Bhivchandra Shankar More vs Balu Gangaram More and others (2019) 6 SCC 387 and in N. Mohan vs. R.Madhu (2020) 20 SC 302

was not brought to the notice of the Court while addressing the arguments on the application at I.A.No.1/2024.

In addition, the learned counsel for the petitioners would also urge that on merits, the appellants have valid grounds to urge as the person who owned the property as on the date of the suit, namely respondent No.2 was not made a party in a suit for specific performance.

It is also urged that the appeal is not considered on merits and deserves consideration on merits in view of the dismissal of the application under Order IX Rule 13 of the Code and dismissal of appeal against the order rejecting Order IX Rule 13 application and the dismissal of Special Leave Petition No. 29296/2024 challenging the order dismissing the said appeal against the order rejecting Order IX Rule 13 application.

Learned counsel for respondent No.1/plaintiff would urge that the application for review is not maintainable as there is no error apparent on the face of the record to seek a review. The application at I.A.No.1/2024 is dismissed, as the appellants in the said appeal have not shown sufficient cause to condone the delay of nearly 7 years in filing the appeal and the appellants did not show their bonafides and were not diligent in prosecuting the application under Order IX Rule 13 of the Code.

Learned counsel appearing for contesting respondent No.1 would also urge that the petitioners have suppressed the order in W.P.No.17264/2023 in which respondent No.2 of this petition is a party.

The Court has considered the contentions raised at the Bar and perused the records.

While dismissing I.A.No.1/2024 and consequently dismissing the appeal, this Court has observed that the Court has not considered the appeal on merits.

The application for condonation of delay of nearly 7 years is dismissed on the premise that sufficient cause is not shown by the appellants. It is an admitted fact that after dismissal of application at I.A. No.1/2024 the application under Order IX Rule 13 of the Code to set aside the exparte decree is dismissed by the Trial Court. Thereafter, petitioners filed MFA No.5455/2024 and same is dismissed vide judgment and decree dated 30.10.2024 and Special Leave Petition No.29296/2024 filed against the said order in MFA No.5455/2024 is also dismissed on 13.12.2024.

It is to be noticed that the decree for specific performance in O.S.No.45/2015 is decreed on 21.01.2017. The application to set aside exparte decree is filed by defendant No.2 in the said suit i.e., Chandrashekar, son of Thimmaiah, the predecessor in title of petitioners and respondent No.3 before this Court, in the year 2017.

When the Miscellaneous Petition No.7/2018 under Order IX Rule 13 of the Code was pending consideration, the Regular First Appeal No.1016/2024 was filed.

The predecessor of the petitioners, namely Chandrashekar son of Thimmaiah, did not prosecute the Miscellaneous Petition No.7/2018 with due diligence and there was no order staying the operation of the decree in O.S. No.45/2015.

In the meantime, the decree holder had filed Execution Petition No.97/2017, in which respondent No.3 of this petition (Chethan Kumar who is son of Late Chandrashekar and brother of petitioners No.2 and 3) filed application to resist the execution of decree on the premise that he had acquired title over the property by the time suit was filed. Said application under Order XXI Rule 97 of the Code was allowed. However, the decree holder had filed writ petition No.17264/2023 and same was allowed vide order dated 21.11.2023 setting aside the order allowing Order XXI Rule 97 application.

This Court while dismissing the application at I.A. No.1/2024 for condonation of delay has observed as under:

"8. It is to be noticed that the application to set aside the exparte decree was filed in the year 2017 itself. For close to seven years, the appeal was not filed and it was filed only in 2024. It is a well-settled principle of law that both remedies are available to the parties, who have suffered an exparte decree. The party may apply under Order IX Rule 13 of the Code and file an appeal under Section 96 of the CPC.

It is urged before this Court that having applied Order IX Rule 13 of Code, the applicant before the trial Court did not prosecute the matter diligently and kept on taking adjournment. There is nothing on record to show that the appellants have exercised due diligence in prosecuting the application to set aside the exparte decree. It appears that only when the execution proceeding has reached the final stage, the appellants have chosen to file this appeal on the premise that in the Order IX Rule 13 proceeding stay of the decree is not yet granted or that the decree is not yet set aside."

The application was dismissed with an observation that the petition under Order IX Rule 13 of the Code shall be considered on its merits without being influenced by the dismissal of the application for condonation of delay.

The learned counsel for the petitioners would urge that the time spent in prosecuting Order IX Rule 13 of the Code application would be sufficient ground to condone the delay under Section 5 of the Limitation Act, 1963 and placed reliance on the judgment of the Apex Court in N. Mohan, and Bhivchandra Shankar More (supra).

In N. Mohan (supra) of Apex Court has held under:

"Where the defendant has adopted dilatory tactics or where there is lack of bonafide in pursuing remedy of appeal under Section 96 (2) of the Code, has to be considered depending upon the facts and circumstances of each case."

Thus, it is evident that merely because the party was prosecuting the remedy under Order IX Rule 13 of the Code to set aside exparte decree, that, by itself, would not be a ground to condone the delay in filing an appeal under Section 96(2) of the Code. If it is found that the defendant was adopting dilatory tactics or if it is found that there is lack of bonafides in pursuing the remedy, then the delay in filing the appeal under Section 96(2) of the Code need not be condoned.

As already noticed above, this Court while dismissing the application has held that the petitioner in Miscellaneous Petition No.7/2018 was not diligently prosecuting the application under Order IX Rule 13 of the Code. Only when the execution case reached the final stage, the petitioners have chosen to file the appeal as the original petitioner in Miscellaneous Petition No.7/2018 had died by that time.

It is also relevant to notice that the execution proceeding was delayed, as respondent No.3 of this petition filed application under Order XXI Rule 97 of the Code, resisting the execution of the decree on the premise that he has right over the property. Though the Trial Court accepted his application, this Court in W.P.No.46538/2018, vide order dated 03.09.2021, allowed the Writ Petition and dismissed the application under Order XXI Rule 97 of the Code.

The said applicant namely Chethan Kumar was appellant No.3 in RFA No.1016/2024. He is respondent No.3 in the present petition and it is stated that he has not come forward to file Review Petition along with other appellants.

Since RFA No.1016/2024 was filed along with Chethan Kumar as appellant No.3 who had suffered an adverse order in W.P.No.46583/2018, the Court is of the view that the present petitioners were also aware of the order passed in the aforementioned Writ Petition. What is relevant to notice is all the appellants in the said appeal are residing together in a same place as can be noticed from the cause-title.

Thus, the Court can certainly infer that the present petitioners were also aware of the application under Order XXI Rule 97 of the Code filed before the executing Court and the Writ Petition filed by respondent No.2. However, these facts have been suppressed in the present petition. Though the order in the aforementioned Writ Petition does not decide the claim of the present petitioners, it is to be observed that the petitioners should have disclosed about the disposal of the said proceeding as respondent No.3 of the present petition was one of the appellants in the Regular First Appeal. This is one of the reasons for the Court not to show any indulgence in favour of the petitioners who pray for hearing on merits of the appeal by condoning the delay.

The judgments cited by the petitioners are rendered in the backdrop of specific facts obtained in those cases. This Court does not find any apparent error in the order to grant the review.

Under these circumstances, without entering into the contentions raised on the merits of the appeal, the following order is passed.

ORDER

Review Petition is dismissed.