2010 (6) TMI 660 - SC - Indian Laws

Condonation of delay - plea for setting aside the sale through auction - Held that - The delay in filing the first appeal before District Judge, Ludhiana, for setting aside the sale has not been so huge warranting its dismissal on such hypertechnical ground. In fact, appellant had taken all possible steps to prosecute the matter within time. Had there been an intimation sent to the appellant by its erstwhile Advocate, and if even thereafter appellant had acted callously then the negligent attitude of the appellant would have been understood but that was not the case here. While considering the application for condonation of delay no straight jacket formula is prescribed to come to the conclusion if sufficient and good grounds have been made out or not. Each case has to be weighed from its facts and the circumstances in which the party acts and behaves. From the conduct behaviour and attitude of the appellant it cannot be said that it had been absolutely callous and negligent in prosecuting the matter. After all, justice can be done only when the matter is fought on merits and in accordance with law rather than to dispose it of on such technicalities and that too at the threshold. Both sides had tried to argue the matter on merits but we refrain ourselves from touching the merits of the matter as that can best be done by the Executing Court which had denied an opportunity to the appellant to lead evidence and to prove the issues so formulated - ends of justice would be met by setting aside the impugned orders and matter is remitted to the Executing Court to consider and dispose of appellant's objections filed under Order 21 Rule 90 of CPC on merits and in accordance with law as appellant would not have gained in any manner whatsoever, by not filing the appeal within the period of limitation.

Summary

Issues involved:
1. Delay in filing appeal for setting aside the sale.
2. Application under Section 5 of the Limitation Act for condonation of delay.
3. Dismissal of objections filed under Order 21 Rule 90 of CPC.
4. Conversion of execution second appeal into civil revision by the High Court.
5. Consideration of delay in filing Special Leave Petition.
6. Conduct and behavior of the appellant in prosecuting the matter.
7. Decision on the appeal and remittance of the matter to the Executing Court.

Issue 1: Delay in filing appeal for setting aside the sale:
The appellant, an Improvement Trust, Ludhiana, failed to deposit the compensation amount for acquired land, leading to an auction sale in favor of respondent No. 5. The appellant filed objections under Order 21 Rule 90 CPC after the sale, but the appeal before the District Judge was delayed by two months and a few days. The Appellate Court dismissed the appeal due to delay, which was confirmed by the High Court. However, the Supreme Court found the delay not substantial enough to warrant dismissal, indicating that the appellant had taken steps promptly upon learning of the dismissal.

Issue 2: Application under Section 5 of the Limitation Act for condonation of delay:
The appellant filed an application under Section 5 of the Limitation Act to condone the delay in filing the appeal, which was dismissed by the Appellate Court. The Supreme Court observed that the delay was not significant and should have been condoned, especially considering the appellant's efforts to pursue the matter promptly upon becoming aware of the dismissal.

Issue 3: Dismissal of objections filed under Order 21 Rule 90 of CPC:
The objections filed by the appellant under Order 21 Rule 90 of CPC were dismissed due to non-appearance on multiple hearing dates. The Court noted the appellant's reliance on its advocate, Mr. P.K. Jain, and the efforts made to contest the matter earnestly. The Court emphasized that justice should be served by allowing the matter to be contested on merits rather than dismissing it on technical grounds.

Issue 4: Conversion of execution second appeal into civil revision by the High Court:
The High Court converted the execution second appeal into a civil revision due to a specific bar under Section 104 of the CPC. The respondent contended that no error was made in dismissing the appellant's application for setting aside the sale, which was upheld by the High Court. The Supreme Court, however, found the delay not substantial enough to warrant dismissal and remitted the matter to the Executing Court for consideration on merits.

Issue 5: Consideration of delay in filing Special Leave Petition:
The Special Leave Petition was delayed by 258 days in refiling, with a further delay of 90 days. The Court considered this delay to reflect the appellant's conduct and attitude in prosecuting the matter. The Supreme Court, however, found the delay not to be a hindrance to granting leave, emphasizing the need for justice to be served between the parties.

Issue 6: Conduct and behavior of the appellant in prosecuting the matter:
The Court analyzed the conduct and behavior of the appellant in diligently pursuing the case, despite delays in filing appeals and petitions. The appellant's reliance on its advocate and the steps taken promptly upon learning of dismissals were considered in assessing the appellant's commitment to the case.

Issue 7: Decision on the appeal and remittance of the matter to the Executing Court:
The Supreme Court set aside the impugned orders passed by the Appellate Court and the High Court, remitting the matter to the Executing Court for consideration of the appellant's objections under Order 21 Rule 90 of CPC on merits. Emphasizing the importance of allowing matters to be contested on merits, the Court directed both parties to appear before the Executing Court promptly to resolve the issue without undue delays.

This detailed analysis of the legal judgment highlights the key issues involved, the sequence of events, the Court's observations, and the final decision to remit the matter to the Executing Court for further consideration.