Withdrawal with liberty neither creates a fresh right of appeal nor revives an expired limitation period.

The appellant-firm filed an Execution First Appeal under Order XXI Rule 58 read with Sections 103, 104 and 151 of the Code of Civil Procedure, 1908 (“CPC”), and Article 227 of the Constitution, challenging orders dated 22 March 2022 and 25 November 2022 passed by the courts below in execution proceedings.

The appeal was filed with a delay of 501 days in challenging the order dated 22 March 2022, for which the appellant sought condonation on grounds including delay in obtaining the certified copy, the COVID-19 pandemic, medical treatment, travel to Canada, recovery after return, and the filing of a review petition.

The appellant had previously filed EX.F.A. 3/2023 challenging the order dated 25 November 2022. That appeal was withdrawn on 26 February 2024 after the Court drew attention to Order XLVII Rule 7(1) CPC, with liberty to pursue such remedies as were available in law. The appellant thereafter filed the present appeal.

Whether the appellant could maintain the present appeal challenging the order dated 25 November 2022 after having withdrawn an earlier appeal against the same order with liberty to pursue remedies available in law?

Whether the appellant had demonstrated sufficient cause for condonation of the 501-day delay in challenging the order dated 22 March 2022?

Whether the Court was required to examine the merits of the appellant’s grievances concerning the execution proceedings?

The Court considered the appeal as having been instituted under Order XXI Rule 58 and Sections 103, 104 and 151 CPC, read with Article 227 of the Constitution.

Order XLVII Rule 7(1) CPC was relevant because it affected the maintainability of the earlier appeal against the order dated 25 November 2022.

The Court applied the principle that liberty granted while permitting withdrawal of proceedings does not itself create or enlarge a substantive right of appeal, nor does it automatically extend or revive limitation for challenging another order.

It further applied the principle that delay can be condoned only where the applicant establishes sufficient cause and demonstrates a satisfactory explanation for the entire period of delay.

The Court held that the earlier withdrawal order merely permitted the appellant to pursue remedies legally available; it did not adjudicate upon or confer a fresh right to challenge the order dated 25 November 2022 by way of the present appeal. Since the appellant had already challenged that order in EX.F.A. 3/2023, the renewed challenge was not maintainable.

With respect to the order dated 22 March 2022, the Court found that the grounds pleaded did not satisfactorily explain the entire 501-day delay. The periods relating to obtaining the certified copy, illness, travel to Canada and recovery were not sufficient, cumulatively, to establish due diligence for the full period.

The review petition filed on 11 November 2022 had itself been dismissed on limitation and could not, without further explanation, account for the subsequent delay. Similarly, withdrawal of the earlier appeal on 26 February 2024 could not erase the delay that had already accrued or operate as an extension of limitation.

Since both challenges failed on maintainability and limitation, the Court considered it unnecessary to examine the merits of the execution dispute.

It further held that the appellant had failed to establish sufficient cause for condoning the 501-day delay in challenging the order dated 22 March 2022.

Accordingly, CM APPL. 41564/2024 seeking condonation of delay was dismissed, and EX.F.A. 26/2024 was dismissed along with the pending applications. The previously fixed date of 26 November 2026 was cancelled.