Case Note & Summary
The case involved an interim application filed by Appellant seeking condonation of delay of 1938 days in filing a first appeal against a judgment and decree dated 27 July 2016 passed by the City Civil Court at Mumbai. The appeal was required to be filed within 30 days but was filed on 18 December 2021, resulting in the substantial delay. The applicant, aged 78, explained the delay through paragraphs 3 and 4 of the application, citing paralysis since 2012, old age, financial difficulties, and failure of his previous advocate to take steps despite instructions. He also mentioned that his present advocate informed him about the limitation period and that execution proceedings had been initiated against him by the respondent. The core legal issue was whether sufficient cause existed under Section 5 of the Limitation Act, 1963 to condone the delay. The applicant's counsel argued based on the averments, while no one appeared for the respondents. The court analyzed the application and found no supporting documents annexed to substantiate the reasons, such as medical records or details of the advocates involved. It noted inconsistencies, including that the paralytic attack occurred in 2012, while the impugned order was passed in 2016, and questioned why the applicant's son could pursue proceedings in 2021 but not earlier. The court also observed a trend of filing belated appeals to frustrate execution proceedings, which it deemed unacceptable as it delays the successful litigant's enjoyment of the decree. Relying on the Supreme Court decision in Shivamma (dead) by Lrs. vs. Karnataka Housing Board & Ors., the court held that no sufficient cause was shown to exercise discretion under Section 5. Consequently, the interim application was dismissed, and the first appeal also stood dismissed.
Headnote
A) Civil Procedure - Limitation - Condonation of Delay - Limitation Act, 1963, Section 5 - Application sought condonation of 1938 days delay in filing first appeal against judgment dated 27 July 2016 - Applicant cited paralysis since 2012, old age, financial issues, and advocate's inaction as reasons - Court found no supporting documents for bald averments and noted applicant's son could pursue proceedings in 2021 but not in 2016 - Held that no sufficient cause shown to exercise discretion under Section 5 (Paras 1-12) B) Civil Procedure - Execution Proceedings - Frustration of Decree - Code of Civil Procedure, 1908 - Applicant mentioned execution proceedings filed against him by respondent - Court observed trend of filing belated appeals to frustrate execution when decree holder seeks fruits of decree - Held such practice cannot be accepted as it gives premium to unsuccessful litigant and delays enjoyment by successful litigant (Paras 10-12)
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Issue of Consideration: Whether sufficient cause was shown to condone the delay of 1938 days in filing the first appeal under Section 5 of the Limitation Act, 1963
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Final Decision
Interim application dismissed. Consequently, the first appeal also stands dismissed.
