Karnataka HC Rejects 515-Day-Delayed Appeal Against Dismissal Of Plea To Set Aside Ex-Parte Decree, Leaves Section 96 Route Open

In brief

The question

Whether the appellant showed sufficient cause to condone the 515-day delay in filing the appeal.

The court held

The Court dismissed I.A. No. 1/2023 for failure to establish sufficient cause and, consequently, dismissed the appeal on the ground of delay.

It also directed

The order expressly stated that this dismissal would not preclude the appellant from preferring an appeal under Section 96 CPC.

01Facts

The appellant filed Misc. No. 910/2014 seeking to set aside an ex parte decree in O.S. No. 7259/2011.

p. 3

The trial court dismissed the miscellaneous petition on 12 January 2022, and the appellant challenged that order by this appeal under Order XLIII Rule 1(d), read with Section 104 CPC.

p. 5

The appeal was filed 515 days late.

p. 3

In seeking condonation, the appellant stated that she was illiterate and unfamiliar with court procedure, had not been informed of the dismissal, and learned of it belatedly; she also cited financial dependence and advice from family and well-wishers.

pp. 3–4

The respondents opposed condonation, arguing that no sufficient explanation had been given and that the appellant had been represented by counsel in the suit and subsequent proceedings; they also submitted that possession had been taken in execution.

pp. 5–6

02Issues

i.Whether the appellant showed sufficient cause to condone the 515-day delay in filing the appeal.

¶ 3–4, 6–8

ii.Whether the appeal could proceed once the application to condone delay was dismissed.

¶ 10

03Law Applied

Under the principles governing condonation of delay, the applicant bears the onus of providing a cogent and sufficient explanation for the delay; an inordinate delay should not be condoned without a satisfactory explanation.

¶ 7, 9

The Court relied on Pathapati Subba Reddy (Died) by Legal Representatives and Others v. Special Deputy Collector (LA), (2024) 12 SCC 336, and Ajay Dabra v. Sunder Singh & Anr., SLP (C) No. 15848 of 2019, decided on 31 January 2023, for those principles.

¶ 5.2, 9

The appeal was brought under Order XLIII Rule 1(d), read with Section 104 CPC.

p. 3

Provisions in the judgment · 2 · Linked ones open on LawLens

Code of Civil Procedure, 1908 Section 104 Section 96

04Reasoning

The Court found that the appellant’s explanation rested principally on her illiteracy, lack of knowledge of court procedure, and assertion that she was informed of the dismissal belatedly.

¶ 6–7

It noted that she had been represented by counsel both in the original suit and in the miscellaneous proceeding, and that the affidavit did not provide further cogent or convincing grounds establishing why the appeal was delayed for 515 days.

¶ 7–8

Applying the requirement of a satisfactory explanation for an inordinate delay, the Court concluded that sufficient cause had not been shown.

¶ 9–10