Gauhati High Court
Page No.# 1/14 vs Iqbal Hussain on 18 September, 2025
Page No.# 1/14
GAHC010170672024
2025:GAU-AS:12891
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : FAO/68/2024
RAJIB HUSSAIN AND ANR
S/O LATE BADARUDDIN AHMED,
RESIDENT OF GUWAHATI COLLEGE ROAD, JYOTINAGAR, GUWAHATI
781021, DIST KAMRUP M ASSAM
2: ANOWAR HUSSAIN
S/O ASKAR ALI
RESIDENT OF HOUSE NO. 4
JYOTINAGAR (NEAR PRATIDIN PRESS )
PS CHANDMARI
GUWAHATI 781021
DIST.KAMRUP M ASSA
VERSUS
IQBAL HUSSAIN
S/O LATE RAIJUDDIN AHMED
RESIDENT OF GRC(OPP. NIRZARAPAR ADARSHA HIGH SCHOO )
NIZARAPAR, NOONMATI, GUWAHATI 20 PS NOONMATI,DIST KAMRUP M
ASSAM
Advocate for the Petitioner : MR. A CHOUDHURY, MR S ISLAM,MS. N DEVI
Advocate for the Respondent : MR G BHARADWAJ, MD F FARIDI,MR. S R ISLAM
Page No.# 2/14
BEFORE
HON'BLE MRS. JUSTICE MITALI THAKURIA
ORDER
18-09-2025
Heard Mr. A. Choudhury, learned counsel for the appellants and Mr. F.
Faridi, learned counsel for the respondent.
2. This is an application under Order 43 Rule 1 (d) of the CPC challenging the
impugned order dated 28.06.2024, passed in Misc. (J) Case No. 11/2024 arising
out of Misc. (J) Case No. 10/2024 filed praying for condonation of delay of 558
days in filing the petition under Order 9 Rule 13 of the CPC in connection with
Title Execution Case No. 38/2019 in Title Suit No. 136/2018, whereby, the
petition for condonation of delay was rejected by the learned Civil Judge (Sr.
Div.) No.1, Kamrup (M) at Guwahati.
3. It is submitted by Mr. Choudhury, learned counsel that the respondent as
an appellant had instituted a Title Suit and accordingly, vide judgment and
decree dated 26.04.2019 had obtained the decree in their favour. But the
present petitioners/judgment debtors were not aware about the pendency of
the suit and they came to know about the same only on 11.12.2019 regarding
the pendency of the Title Execution Case No. 38/2019 arising out of T.S. No.
136/2018. But, on enquiry it was found that the Title Suit was filed for specific
performance of contract dated 10.03.2016 and accordingly, they obtained the
decree for recovery of an amount of Rs.35,00,000/-.
4. As the petitioners/judgment debtors were not aware about the pendency
of the suit, it was proceeded ex-parte and no notice was duly served on the
petitioners/judgment debtors to contest the case and hence, only at the stage
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of execution, the petitioners/judgment debtors came to know about the
pendency of the same.
5. It is further submitted by Mr. Choudhury, learned counsel that the present
petitioners/defendants had a good term with the land owners, namely, Mrs. Rubi
Goswami, and accordingly, they had entered into a tripartite agreement with the
builders, namely, M/s Shree Dayasagar Construction for construction of a multi
storied apartment for residential flat vide agreement No.1576/2014 dated
17.02.2014. The said tripartite agreement was between the land owner, builder
and the judgment debtors/present petitioners.
6. Subsequently, the respondent/decree holder entered into another
agreement for sale dated 10.03.2016 for purchasing a flat in the first floor of
the building with the petitioners. In pursuance of the said agreement, the
respondent/decree holder also paid an amount of Rs.30,00,000/- on the date of
execution of the deed of agreement as an advance amount and the remaining
Rs.22,00,000/- was suppose to be paid at the time of execution of the sale deed
out of sale consideration amount of Rs.52,00,000/-. Again on 19.03.2016, the
decree holder/respondent paid another amount of Rs.5,00,000/- to the
petitioners, thus an advance amount of Rs.35,00,000/- was paid to the present
petitioners.
7. But after some days, it was informed by the decree holder that he is not
going to purchase the flat as agreed to purchase and asked the petitioners to
return the money and thereafter, it was also told to the petitioners/judgment
debtors that an amount of Rs.31,00,000/- which he already paid to the decree
holder/respondent as a loan for business purpose will be adjusted from the total
amount of Rs.35,00,000/- which was paid by the decree holder and the
remaining balance amount of Rs.4,00,000/- will be refunded on the date of
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cancellation of the agreement for sale No. 2949/2016 dated 10.03.2016.
8. But, thereafter, the decree holder/respondent had filed the Title Suit for
specific performance of contract and behind the back of the petitioners, he
obtained the decree and only at the time of execution of decree, the petitioners
came to know about the pendency of the suit as well as regarding the decree of
the suit.
9. Mr. Choudhury, learned counsel further submitted that the judgment and
decree has been passed on the basis of some false statement made by the
respondent/decree holder and they also suppressed the fact of return of
Rs.31,00,000/- out of 35,00,000/- paid as an advance amount and also
suppressed the fact that only 4,00,000/- is remaining as outstanding amount to
be paid by the present petitioners/judgment debtors.
10. He further submitted that the money receipts are also annexed along with
this petition which was acknowledged by decree holder/respondent while
receiving the money from the present petitioners.
11. Finding no other alternative, the petitioners/judgment debtors had
appeared before the learned Civil Judge (Sr. Div.), Kamrup (M), Guwahati and
filed a petition under Order 9 Rule 13 CPC, praying for vacating the ex-parte
judgment and decree dated 26.04.2019 passed in T.S. No. 136/2018 and at the
time of filing the said petition, there was a delay of 558 days from the date of
acknowledge and if it is calculated from 09.12.2019, the petition was filed with a
delay of 630 days. It is an admitted fact that there was a considerable delay in
preferring the petition under Order 9 Rule 13, but there were no intentional
lapses or negligence on the part of the present petitioners and due to some
medical and health issues, the petition could not be filed within the stipulated
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period of limitation.
12. He further submitted that the learned Trial Court did not consider the
grounds for delay and also did not consider the supporting medical documents,
which were annexed with the petition, which prevented the petitioners from
preferring the said petition within the period of limitation.
13. He further submitted that it is an admitted fact that there are some lapses
on the part of the petitioners as well as his engaged counsel, but same must
not prevent the petitioners/judgment debtors to contest the case otherwise
there would be an execution of a decree which is absolutely non-executable
decree, wherein it is an admitted position that out of Rs.35,00,000/-, paid as an
advance amount, the petitioners have already refunded Rs.31,00,000/- which
was taken by the respondent as loan for business purpose.
14. Mr. Choudhury further submitted that the petition under Section 5 of the
Limitation Act should have received a liberal consideration so as to advance
substantial justice and the delay is required to be condoned in the interest of
justice, where there is no gross negligence or deliberation on the part of the
petitioners. Accordingly, it is prayed by Mr. Choudhury that the petition filed
under Order 9 Rule 13 CPC may be considered and the petitioner may be
allowed a chance to contest the case of T.S. No. 136/2018 instituted by the
respondent/decree holder by vacating the ex-parte judgment and decree passed
by the learned Civil Judge (Sr. Div.).
15. Mr. Faridi, learned counsel for the respondent submitted in this regard that
from the statement made in the present petition in paragraphs 12 and 13, it
reveals that there was knowledge of the decree on 09.12.2019 itself which was
already accepted by the present petitioners that they had the knowledge about
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the judgment and decree passed in T.S. No. 136/2018 on 09.12.2019. But
inspite of the said knowledge, the petition for vacating the ex-parte order was
filed with a delay of 558 days without any proper explanation of the delay and
without any reasonable grounds, there was prayer for condonation of delay.
Thus, the learned Trial Court had rightly passed the order dismissing the petition
for condonation of delay in filing the petition under Order 9 Rule 13 CPC for
vacating the ex-parte judgment and decree passed against the present
petitioners.
16. He further submitted that the execution proceeding is also pending since
2019 and thus, even after long years of litigation, the plaintiff/decree holder
could not enjoy fruit of the decree and by filing petition, one after another the
petitioner had delayed the proceeding.
17. He further submitted that though some money receipts were submitted by
the petitioners, the signatures available in those money receipts are also
doubtful and all those money receipts were manufactured only with the
intention to frustrate the decree obtained by the respondent/decree holder.
18. Though the petitioner basically took the medical ground for delay, but
there is no proper explanation and no supportive medical documents could be
furnish and at the same time, it is an admitted fact that the petitioners had the
knowledge about the judgment and decree in the year 2019 itself.
19. He further submitted that the petitioner also took the ground of Covid-19
but during that period there was no such any pandemic situation to prevent the
petitioners in preferring the said petition.
20. Mr. Faridi, learned counsel further submitted that the petitioners also took
the ground of lapses on the part of the advocate, but there is no such
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explanation in regards to the lapses or negligence on the part of his engaged
counsel. To substantiate his plea, he also relied on a decision of the Hon'ble
Supreme Court in the case of B. Madhuri Goud Vs. B. Damodar Reddy
reported in (2012) 12 SCC 693.
21. He further submitted that all the grounds set forth in the present petition
had already been taken by the petitioners at the time of filing the delay
condonation petition before the learned Civil Judge (Sr. Div.) and the present
petition is filed repeating the same grounds which cannot be entertained. He
basically emphasized on paragraphs 30, 31, 32 and 33 of the judgment of the
Hon'ble Supreme Court in the case of Thirunagalingam Vs. Lingeswaran
and another reported in (2025) SCC OnLine SC 1093, which reads as
under:
"30. In the present appeal, the Respondents seek to raise the very same reason to
condone the delay as were previously canvassed, without placing any fresh or
additional material to distinguish the current reason from the one already
discussed and dismissed. This Court is of the considered view that such a
repetition of grounds already scrutinized and held untenable amounts to an abuse
of the process of law. Although the applications for condonation of delay are filed
under different provisions of the law but the said provisions provide for concurrent
remedies through different mechanisms and if the application filed under one
provision has already been dismissed by a court of competent jurisdiction, by
applying its judicial mind and held that the reasons for delay were not sufficient,
a subsequent application filed under different provision, reiterating the same
contentions or grounds of delay, cannot be entertained.
31. It is a well-settled law that while considering the plea for condonation of delay,
the first and foremost duty of the court is to first ascertain the bona fides of the
explanation offered by the party seeking condonation rather than starting with the
merits of the main matter. Only when sufficient cause or reasons given for the
delay by the litigant and the opposition of the other side is equally balanced or
stand on equal footing, the court may consider the merits of the main matter for
the purpose of condoning the delay.
32. Further, this Court has repeatedly emphasised in several cases that delay
should not be condoned merely as an act of generosity. The pursuit of substantial
justice must not come at the cost of causing prejudice to the opposing party. In
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the present case, the respondents/defendants have failed to demonstrate
reasonable grounds of delay in pursuing the matter, and this crucial requirement
for condoning the delay remains unmet.
33. Therefore, in the case at hand, once it has been established that the reasons
provided for condoning the delay in the application filed are not sufficient, we are
not inclined to go into the merits of the contentions raised by the learned counsel
of Respondents regarding Section 14 of the Limitation Act, 1963."
22. Citing the above referred judgment it is submitted by Mr. Faridi that there
cannot be any ground for condoning the delay of 558 days inspite of having
knowledge in regard to decree of the case in the year 2019, the petitioners
came with a petition with a delay of 558 days only to harass the
respondent/decree holder and to delay the entire proceeding of the Title
Execution, which is pending at the stage of execution. Accordingly, he raised
vehement objection and submitted that it is not at all a fit case to consider the
prayer of the petitioners to condone the delay of 558 days, as stated above.
23. Heard the submissions of the learned counsel for both sides and I have
also perused the case record and the petition filed before the learned Trial Court
as well as the order passed by the learned Civil Judge (Sr. Div.) while disposing
the petition for condonation of delay.
24. The respondent/decree holder as a plaintiff instituted a suit for specific
performance of contract, which was registered as T.S. No. 136/2018, wherein
they got the ex-parte decree in their favour and it was observed in the
judgment that the defendants/petitioners did not appear even after receiving
the summon and the case proceeded ex-parte against the
petitioners/defendants. In the result, the ex-parte decree was passed in favour
of the plaintiff/respondent and accordingly, held that the respondent entitled to
a decree for recovery of Rs.35,00,000/- with interest @ 6% from the date of
registration of the agreement for sale till full and final realization of the
Page No.# 9/14
decreetal amount.
25. But the case of the petitioners/judgment debtors/defendants is that they
were not aware about the pendency of the case for which, they could not
contest the case which was resultantly decreed ex-parte against the petitioner
and after coming to know about the decree, passed in the said Title Suit after
the institution of the Title Execution case, the present petitioner had filed a
petition seeking condonation of delay which was accordingly dismissed by the
learned Civil Judge (Sr. Div.), Kamrup (M), Guwahati.
26. At the filing of the said petition the grounds taken that the notice of the
T.S. No. 136/2018 was sent to the defendant No.1, which was received by one
Jakir Hussain, who is stated to be the elder brother of the judgment debtor
No.1, who resides separately. Moreover, the notice was served at H. No.14
wherein neither the judgment debtor No.1, nor his brother resides and during
that period from 2015-2018, the defendant No.1 also accompanied his elder
brother to NIMHANS Hospital, Bangalore for his treatment, who was hospitalized
there and during that period, wife of the brother of the defendant No.1 also
expired in the GATE Hospital on 07.10.2019. For these medical emergencies and
due to death of a family member, the petitioners could not prefer the petition
within the period of limitation. However, it is admitted by the petitioners that
they came to know about the decree on 09.12.2019, but due to all these
emergencies and the medical ground, the petitioners could not prefer the
petition praying for vacating the ex-parte order within the period of limitation.
On the other hand, it is the case of the respondent that inspite of having
knowledge in the year 2019 itself, the petitioners remained absent and they
came with a delay of 558 days only in 2024 without any proper explanation in
regards to the delay.
Page No.# 10/14
27. On perusal of the order passed by the learned Civil Judge (Sr. Div.) it is
seen that he had considered the medical emergencies and the medical grounds
taken by the petitioners while passing the order dated 28.06.2024.
28. It is also observed by the learned Trial Court that inspite of giving several
adjournments, owing to the suspension of the Court activities due to Covid-19
Pandemic, the petitioners remained absent subsequently and inspite of their
knowledge, they failed to take necessary steps to set aside the ex-parte
judgment and decree.
29. It is also rightly observed that the term "sufficient cause" should be
liberally interpreted and focus should be on the explanation provided. But the
learned Civil Judge did not find any proper explanation nor the explanation was
substantiated by any proper document and accordingly, it was held that the
petitioners/judgment debtors has neglected their rights for a prolonged period
and considering all these aspects of the case, the petition for condonation of
delay was dismissed.
30. It is an admitted fact that that there are some laches on the part of the
present petitioners and there is no proper explanation of each and every day
delay in their petition, however, they brought sufficient medical grounds as well
as expiry of one of the family members in the petition for condonation of delay.
That apart, the most important aspect is to be considered is that, the petitioners
claim that they have already refunded Rs.31,00,000/- out of Rs.35,00,000/-
which were received by the judgment debtor towards sale consideration. As per
the plaintiff/respondent, the amount of Rs.31,00,000/- only was taken as loan
by the respondent/decree holder, but subsequently, as per the decree holder it
was considered as a refunded amount of out of Rs.35,00,000/- which was
received by petitioners at the time of sale consideration. Thus, a very strong
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ground has been taken by the respondent and to substantiate the same they
also furnish some money receipts wherefrom it is seen that the
respondent/decree holder had already received Rs.31,00,000/- out of
Rs.35,00,000/- of the sale consideration amount. So, if the petitioners/judgment
debtors are not provided any chance for agitating these facts of the case,
specially the refund of money of Rs.31,00,000/- prejudice will be caused to the
petitioners.
31. It is also not the case that the petitioners have not brought any reasons
for delay and the delay which is explained by the petitioners is basically the
health ground, which prevented the petitioners in preferring the petition for
vacating the ex-parte order within the period of limitation.
32. In construing Section 5 of the Limitation Act, the Court has to keep in
mind that discretion in the Section has to be exercised to advance substantial
justice. The Court has a discretion to condone or refuse to condone the delay as
it evident from the words "may be admitted" used in Section [(2001) 6 SCC
176 M. K. Prasad Vs. P. Arumugam].
33. In the above referred judgment in para 9 it has been observed as under:
"Again in The State of West Bengal v. The Administrator, Howrah Municipality &
Ors. [1972 (1) SCC 366 and G.Ramegowda, Major & Ors. v. Special Land
Acquisition Officer, Bangalore [1988 (2) SCC 142 this Court observed that the
expression "sufficient cause" in Section 5 of the Limitation Act must receive a
liberal construction so as to advance substantial justice and generally delays be
condoned in the interest of justice where gross negligence or deliberate inaction or
lack of bonafide is not imputable to the party seeking condonation of delay. Law of
limitation has been enacted to serve the interests of justice and not to defeat it.
Again in N. Balakrishnan v. M.Krishnamurthy [1998 (7) SCC 123] this Court held
that acceptability of explanation for the delay is the sole criterion and length of
delay is not relevant. In the absence of anything showing malafide or deliberate
delay as a dilatory tactics, the court should normally condone the delay. However,
Page No.# 12/14
in such a case the court should also keep in mind the constant litigation expenses
incurred or to be incurred by the opposite party and should compensate him
accordingly. In that context the court observed:
"It is axiomatic that condonation of delay is a matter of discretion of the
court. Section 5 of the Limitation Act does not say that such discretion can be
exercised only if the delay is within a certain limit. Length of delay is no matter,
acceptability of the explanation is the only criterion. Sometimes delay of the
shortest range may be uncondonable due to a want of acceptable explanation
whereas in certain other cases, delay of a very long range can be condoned as
the explanation thereof is satisfactory. Once the court accepts the explanation
as sufficient, it is the result of positive exercise of discretion and normally the
superior court should not disturb such finding, much less in revisional
jurisdiction, unless the exercise of discretion was on wholly untenable grounds
or arbitrary or perverse. But it is a different matter when the first court refuses
to condone the delay. In such cases, the superior court would be free to
consider the cause shown for the delay afresh and it is open to such superior
court to come to its own finding even untrammelled by the conclusion of the
lower court."
34. In para 9 of the judgment passed by the Hon'ble Apex Court in the case
of Indian Oil Corporation Ltd. Vs. Subrata Borah Chowlek [Civil Appeal
Nos. 9726-9727 of 2010] has also expressed the same view, which read as
under:
"9. Similarly, in Ram Nath Sao Alias Ram Nath Sahu & Ors. Vs. Gobardhan Sao &
Ors.7, this Court observed that:
"But one thing is clear that the courts should not proceed with the tendency of
finding fault with the cause shown and reject the petition by a slipshod order in
over-jubilation of disposal drive. Acceptance of explanation furnished should be
the rule and refusal, an exception, more so when no negligence or inaction or
want of bona fides can be imputed to the defaulting party. On the other hand,
while considering the matter the courts should not lose sight of the fact that by
not taking steps within the time prescribed a valuable right has accrued to the
other party which should not be lightly defeated by condoning delay in a
routine-like manner......................................................."
35. In another judgment of the Hon'ble Apex Court in the case of State of
Nagaland Vs. Lipak Ao and others reported in (2005) 3 SCC 752 in para
Page No.# 13/14
12 same view has been expressed, which read as under:-
"In O. P. Kathpalia v. Lakhmir Singh (1984 (4) SCC 66), a Bench of three Judges
had held that if the refusal to condone the delay results in grave miscarriage of
justice, it would be a ground to condone the delay. Delay was accordingly
condoned. In Collector Land Acquisition v. Katiji (1987 (2) SCC 107), a Bench of
two Judges considered the question of the limitation in an appeal filed by the State
and held that Section 5 was enacted in order to enable the court to do substantial
justice to the parties by disposing of matters on merits. The expression "sufficient
cause" is adequately elastic to enable the court to apply the law in a meaningful
manner which subserves the ends of justice - that being the life-purpose for the
existence of the institution of courts. It is common knowledge that this Court has
been making a justifiably liberal approach in matters instituted in this Court. But
the message does not appear to have percolated down to all the other courts in
the hierarchy. This Court reiterated that the expression "every day's delay must be
explained" does not mean that a pedantic approach should be made. The doctrine
must be applied in a rational common sense pragmatic manner. When substantial
justice and technical considerations are pitted against each other, cause of
substantial justice deserves to be preferred for the other side cannot claim to have
vested right in injustice being done because of a non-deliberate delay. There is no
presumption that delay is occasioned deliberately, or on account of culpable
negligence, or on account of mala fides. A litigant does not stand to benefit by
resorting to delay. In fact he runs a serious risk. Judiciary is not respected on
account of its power to legalise injustice on technical grounds but because it is
capable of removing injustice and is expected to do so. Making a justice-oriented
approach from this perspective, there was sufficient cause for condoning the delay
in the institution of the appeal. The fact that it was the State which was seeking
condonation and not a private party was altogether irrelevant. The doctrine of
equality before law demands that all litigants, including the State as a litigant, are
accorded the same treatment and the law is administered in an even-handed
manner. There is no warrant for according a step-motherly treatment when the
State is the applicant. The delay was accordingly condoned."
36. Thus, from the view of the Hon'ble Apex Court in various judgments, it can
be held that the mandatory time limit for filing any application, appeal or
petition, the delay may be condoned, if it can arrive at a decision that for
substantial justice, the condonation is justified and it depends upon the facts
and circumstances of each and every case.
37. In the present case also considering the entire facts and circumstances of
the grounds mentioned in the instant petition, especially considering the ground
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of refund of Rs.31,00,000/-, I find it a fit case to condone the delay of 558 days
in preferring the petition under Order 9 Rule 13 CPC for vacating the ex-parte
judgment and decree passed in favour of the respondent/decree holder.
38. Accordingly, the delay of 558 days in preferring the petition under Order 9
Rule 13 CPC is hereby condoned. Accordingly, the order dated 28.06.2024,
passed by the learned Civil Judge (Sr. Div.) No.1, Kamrup (M) at Guwahati
passed in Misc. (J) Case No. 11/2024 arising out Misc. (J) Case No. 10/2024 is
hereby set aside and quashed and the parties are hereby directed to approach
the learned Trial Court.
39. With the above observation and direction, this appeal stands disposed of.
40. Return the TCR forthwith.
JUDGE
Comparing Assistant
