A short, satisfactorily explained delay in appealing an ex parte decree warrants condonation absent mala fides.

The appellant-defendant challenged the judgment and decree dated 11.07.2024 of the lower appellate court, which rejected her application under Section 5 of the Limitation Act for condonation of a 31-day delay in filing a first appeal under Section 96 CPC and consequently dismissed the appeal as time-barred.

The trial court had passed an ex parte judgment and decree on 07.11.2022, and the appellant filed the first appeal on 13.01.2023.

In support of condonation, she stated that, after contracting COVID-19 in 2021 and due to the lockdown, she could not contact her counsel or obtain information regarding the case.

She claimed that she learned of the decree only after meeting her advocate-brother in the New Year of 2023 and thereafter filed the appeal without further delay.

The respondent contended that the appellant had remained ex parte, had not filed a written statement, and ought to have pursued a remedy under Order IX Rule 13 CPC rather than filing a regular appeal.

Whether the lower appellate court committed an error of law in rejecting the appellant’s application under Section 5 of the Limitation Act for condonation of delay and consequently dismissing the first appeal as barred by limitation.

Whether an appellant against an ex parte judgment and decree is entitled to pursue a regular appeal under Section 96 CPC, notwithstanding the availability of a remedy under Order IX Rule 13 CPC.

Section 100 CPC governs the High Court’s jurisdiction in a second appeal on a substantial question of law.

Section 5 of the Limitation Act permits condonation of delay where the applicant establishes “sufficient cause” for not filing the proceeding within the prescribed period.

A first appeal under Section 96 CPC is a permissible remedy against an ex parte decree, and the remedy under Order IX Rule 13 CPC for setting aside an ex parte decree is concurrent rather than exclusive.

In considering condonation of delay, courts should adopt a liberal and justice-oriented approach where the delay is reasonably explained and is not actuated by mala fides.

The High Court held that the delay was only 31 days and that the appellant had provided a probable and reasonable explanation: her inability to contact counsel during the COVID-19 period and her prompt action after acquiring knowledge of the decree.

The appellant’s conduct during the trial, including her failure to file a written statement or appear before the trial court, was held immaterial to determining whether sufficient cause existed for the subsequent delay in filing the appeal.

The lower appellate court also erred in treating Order IX Rule 13 CPC as the only appropriate remedy.

Although that remedy was available, the appellant was entitled to choose the concurrent remedy of a first appeal under Section 96 CPC.

Since there was no allegation or finding of mala fide conduct and the delay had been adequately explained, the refusal to condone it was legally unsustainable.

The High Court condoned the 31-day delay, set aside the judgment and decree of the lower appellate court, and remanded the matter to that court for decision of the first appeal on merits.

The second appeal was allowed, with no order as to costs.