Delay in challenging an ex parte award is condonable where due service is unrecorded.

The applicant, respondent no. 3 in the motor-accident appeal, sought condonation of delay in applying to set aside the ex parte judgment and award dated 17 April 2023.

It claimed a delay of 32 days and said it first learned of the award upon receiving a notice dated 27 November 2024 concerning contempt proceedings.

The opposing parties contended that the delay was 1 year, 8 months and 20 days.

On reviewing the appeal record, the Court noted that although notice had initially been recorded as served, it was reissued on subsequent dates, including 2 December 2022; no order recorded the Court’s satisfaction that the applicant had been served before the ex parte judgment was pronounced.

Whether the delay in filing the application to set aside the ex parte judgment and award should be condoned.

Whether the record of service justified permitting the applicant to pursue its application to set aside the ex parte judgment on the merits.

Section 5 of the Limitation Act, 1963 permits a court to condone delay where sufficient cause is shown.

Article 123 of that Act prescribes 30 days to apply to set aside an ex parte decree or to rehear an appeal heard ex parte; where summons or notice was not duly served, the period runs from the applicant’s knowledge of the decree.

The application to set aside the ex parte judgment was brought under Order IX Rule 13 read with Section 151 of the Code of Civil Procedure, 1908.

The Court examined the procedural record rather than resolving the parties’ competing calculations of delay.

Although an earlier order referred to online tracking as showing delivery, the Court later reissued notice, and the record contained no finding that the applicant had been served before judgment.

In those circumstances, the Court considered it appropriate to condone the delay so that the application to set aside the ex parte judgment could be heard on its merits.

This enabled the applicant’s application under Order IX Rule 13 read with Section 151 CPC to proceed for consideration on the merits; the Court did not decide that application in this order.