Page No.# 1/6 vs Nazmina Khatun And 2 Ors
2025 Latest Caselaw 5905 Gua

Gauhati High Court

Page No.# 1/6 vs Nazmina Khatun And 2 Ors on 2 April, 2025

                                                                         Page No.# 1/6

GAHC010094472024




                                                                   2025:GAU-AS:4153

                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                  Case No. : CRP(IO)/157/2024

            CHATTRA KR DAS
            S/O LATE DWIJENDRA KR. DAS, R/O GOALTOLI, P.O.-BALADMARI, P.S.
            AND DIST- GOALPARA, ASSAM, PIN-783121



            VERSUS

            NAZMINA KHATUN AND 2 ORS
            W/O LATE ABDUR RASHID KHAN, R/O ISLAMPUR (B.O.C.), P.O.-
            BALADMARI, P.S. AND DIST- GOALPARA, ASSAM, PIN-783121

            2:ATTIQUE SHAHADAT KHAN
             S/O LATE ABDUR RASHID KHAN
             R/O ISLAMPUR (B.O.C.)
             P.O.-BALADMARI
             P.S. AND DIST- GOALPARA
            ASSAM
             PIN-783121

            3:TANJEEL KHAN
             S/O LATE ABDUR RASHID KHAN
             R/O ISLAMPUR (B.O.C.)
             P.O.-BALADMARI
             P.S. AND DIST- GOALPARA
            ASSAM
             PIN-78312

Advocate for the Petitioner   : MR. A R SIKDAR, MR. M H TALUKDAR

Advocate for the Respondent : ,
                                                                       Page No.# 2/6

                                     BEFORE

               HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA

                                     ORDER

02.04.2025

1. Heard Mr. A.R. Sikdar, the learned counsel for the petitioner. None has appeared for the respondents, though the notices were duly served on the respondents.

2. This application under Article 227 of the Constitution of India, read with Section 115/151 of the Code of Civil Procedure, 1908, has been filed by the petitioner, impugning the order dated 05.02.2024 passed in Misc.(J)Case No. 88/2022, arising out of Misc.(J) Case No. 83/2022 in T.S. No. 21/2016 by the Court of the learned Civil Judge (Senior Division), Goalpara, whereby the Trial Court condoned the delay in filing the restoration application by the present respondents, in respect of T.S. No. 21/2016 which was dismissed for default.

3. The facts relevant for consideration of this petition are that the petitioner had instituted a suit (T.S. No. 21/2016) praying for decree of specific performance of contract against the respondents. In the said suit, summons were issued to the present respondents and the same were held to be duly served. However, when the present respondents failed to appear in the said Title Suit, the same was directed to be proceeded exparte against the defendants, by order dated, 24.04.2017. Thereafter, the suit was disposed of exparte by the judgment dated 07.05.2018 and decree dated 10.05.2018. The present petitioner, thereafter, filed Title Execution Case No. 02/2019 for execution of the decree dated 10.05.2018, passed in T.S. No. 21/2016. In the said Title Execution Case, notices were issued to the judgment debtor. After receipt of the notice, the judgment debtor by engaging a counsel filed an Page No.# 3/6

application in the execution case seeking time to submit a written objection. However, thereafter, the engaged counsel remained absent without steps and the Executing Court directed the petitioner to deposit the balance consideration amount and accordingly, the petitioner deposited the balance consideration amount of Rs. 5,20,999/-(Rupees Five Lakhs Twenty Thousand Nine Hundred Ninety Nine only) in the Court.

4. It is further submitted that the Executing Court, by order dated 13.08.2019, directed to register the sale deed by the Officer (Nazir/Sheristadar) and ultimately, on 24.01.2020, the sale deed was registered and Title Execution Case No. 02/2019 was disposed of.

5. Thereafter, the wife of the judgment debtor, namely, Nazmina Khatun (present respondent No. 1) filed Misc.(J) Case No. 83/2022 praying for vacating the ex-parte judgment and decree dated 07.05.2018 in T.S. No. 21/2016. Along with the said Misc. Case, an application under Section 5 of the Limitation Act, 1963 was also filed in another Misc.(J)Case No. 88/2022, praying for the condonation of delay in filing the petition under Order 9 Rule 13 of the Code of the Civil Procedure, 1908 for vacating exparte judgment and decree passed on 07.05.2018.

6. By the impugned order dated 05.02.2024, passed in Misc.(J)Case No. 88/2022, the Trial Court has condoned the delay of almost four years in filing the application for setting aside the exparte decree, which is objected to by the petitioner in the instant revision petition.

7. The learned counsel for the petitioner has submitted that the summons issued to the respondents in T.S. No. 21/2016 were held to have been duly served and in the application filed by the respondents under Section 5 of the Limitation Act, 1963 before the Trial Court, apart from mere denial regarding Page No.# 4/6

receipt of the summons nothing has been stated in the application for condoning the delay as to why the predecessor-in-interest of the present respondents failed to appear before the Trial Court.

8. The learned counsel for the petitioner has also submitted that the predecessor-in-interest of the present respondents also appeared through their engaged counsel in the Title Execution Case No. 02/2019, however, that was also not pursued which shows that they had knowledge about the exparte decree in the year 2019 itself. Hence, it is submitted by the learned counsel for the petitioner that in the application for condoning the delay, the present respondents have suppressed material facts and misled the Trial Court by stating that they came to know about the exparte decree on 27.09.2022.

9. The learned counsel for the petitioner has also submitted that this aspect was not taken into consideration by the Trial Court while allowing the prayer for condoning the delay in filing the application for setting aside exparte decree.

10. In support of his submissions, the learned counsel for the petitioner has cited a ruling of the Apex Court in the case of " S.P. Chengalvaraya Naidu Vs. Jagannath And Others," reported in "(1994)1 SCC 1" as well as another ruling in the case of "A. Shanmugam Vs. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam And Others"

reported in "(2012)6 SCC 430."

11. I have considered the submissions made by the learned counsel for the petitioner and have gone through the materials on record.

12. On perusal of the application filed by the respondents under Section 5 of the Limitation Act, 1963 before the Trial Court which was registered as Misc. (J)Case No. 88/2022, it appears that they came to know about the decree dated Page No.# 5/6

07.05.2018, passed in T.S. No. 21/2016 in the month of January, 2022 only. However, no mention has been made in the said application that in the Title Execution Case No. 02/2019, the predecessor-in-interest of the present respondents had appeared in the said execution proceeding by engaging a counsel on 18.02.2019 and thereafter, sought time for filing written objection.

13. On perusal of the records of Title Execution Case No. 02/2019, this fact is confirmed that on 18.02.2019, the predecessor-in-interest of the present respondents appeared before the Executing Court. Thus, it appears that the fact that an exparte decree has been passed against the predecessor-in-interest of the present respondents as well as the fact that the same was put to execution was known to the predecessor-in-interest of the present respondents. However, till the year 2022, no application under Order 9 Rule 13 of the Code of Civil Procedure, 1908 was filed and in the condonation of delay application also, no sufficient cause has been shown as to why after coming to know about the execution application that was pending in respect of the exparte decree dated 07.05.2018, no application for setting aside the exparte decree was filed. Very surprisingly, the Trial Court while condoning the delay has not considered this aspect in the impugned order.

14. Though, while considering an application for condonation of delay, a liberal approach may be taken, however, the burden cast on the applicant to show sufficient cause for the delay, cannot be waived.

15. In the instant case, the respondents have approached the Trial Court for setting aside the exparte decree after the decree has already been executed. Moreover, in the application filed for condoning the delay, nothing was stated as regards the fact that the predecessor-in-interest of the present respondents had the knowledge regarding the pendency of the execution case in the year 2019 Page No.# 6/6

itself. The respondents, therefore, have approached the Trial Court with unclean hands and have suppressed material facts in the application for condonation of delay.

16. Under the above circumstances, the benefit of taking a liberal view of the matter may not be granted to the respondents, who have failed to show sufficient cause in approaching the Trial Court for setting aside the exparte decree within the period of limitation.

17. For reasons mentioned in the foregoing paragraphs the impugned order dated 05.02.2024, passed in Misc.(J)Case No. 88/2022 is hereby set aside and quashed and the application under Order 9 Rule 13 of the Code of Civil Procedure, 1908 which gave rise to Misc.(J)Case No. 83/2022, in T.S. No. 21/2016 is barred by limitation.

18. With the above observations this Civil Revision Petition is accordingly disposed of.

JUDGE

Comparing Assistant