Tripura High Court
Shri Prantosh Biswas And Others vs Shri Swapan Saha on 25 June, 2025
Author: T. Amarnath Goud
Bench: T. Amarnath Goud
HIGH COURT OF TRIPURA
AGARTALA
IA No.1 of 2025 in RFA 4 of 2025
Shri Prantosh Biswas and others
........Applicant(s)
Vs.
Shri Swapan Saha
........ Respondent(s)
For Applicant(s) : Mr. Pradhyut Kumar Dhar, Sr. Advocate
Mr. Jahirul Islam, Advocate
Ms. Priya Saha, Advocate
Mr. Rahul Debnath, Advocate
For Respondent(s) : Mr. Bibhal Nandi Majumder, Sr. Advocate
Mr. Dhruba Jyoti Saha, Advocate
Mr. Rajib Saha, Advocate
Mr. Rounak Chakraborty, Advocate
Mr. Samrat Sarkar, Advocate
Mr. Elembrak Debbarma, Advocate
HON'BLE JUSTICE DR. T. AMARNATH GOUD
HON'BLE MR JUSTICE BISWAJIT PALIT
ORDER
25.06.2025
Heard learned counsel for the respective parties.
[2] This application has been filed under Order XLI Rule 3A of the Civil
Procedure Code read with Section 5 of the Limitation Act for condoning delay
1089 days in filing the appeal.
[3] It is contended on behalf of the applicant that learned trial court
passed judgment and order dated 07.02.2020 and decree thereunder in
Money Suit No.41 of 2019 and subsequently, by order dated 10.02.2020
corrected the said judgment dated 07.02.2020. Thereafter, the defendant
appellants instructed their learned advocate to prefer appeal and handed over
necessary papers. It had been informed to them that the said learned
advocate prepared the appeal and subsequently their appeal was filed.
[4] It is further contended that the said learned advocate could not
come in Court due to spread of COVID-19 for a reasonable time and he
actually forgotten about the case as he thought that appeal was filed by him
but, actually, no appeal was filed which was subsequently came to the
knowledge of the defendant appellants only on 10.03.2025. Thereafter, a
bitter relation was created amongst the defendant appellants and their
learned advocate. Subsequently, the defendant appellants (applicants herein)
made contact with Mr. P.K. Dhar, learned senior counsel along with their
learned counsel and thereafter, memo of appeal was drafted along with the
application for condonation of delay etc.
[5] Mr. P.K. Dhar, learned senior counsel assisted by Mr. R. Debnath,
learned counsel submits that the entire delay took place due to mistake of the
learned advocate who forgotten the matter and due to mistake of a lawyer, a
party should not suffer. Therefore, he urges this Court to condone the delay in
preferring the appeal.
[6] On the other hand, Mr. Rajib Saha, learned counsel appearing for
the respondent vehemently opposes the submission made by the learned
senior counsel on behalf of the applicants. He submits that the statement
made on behalf of the applicants that the mistake committed in not preferring
the appeal in time came to the knowledge of the applicants only on
10.03.2025 is clearly an afterthought and contrary to record, aimed solely at
creating an illusion of sufficient cause. It is also contended that ignorance of
the status of one's own litigation, particularly when one is actively
participating in related proceedings, cannot constitute a valid explanation
under Section 5 of the Limitation Act. He, therefore, urges this Court to
dismiss the present application for condoning the delay along with the appeal
that has been preferred after a long inordinate delay.
[7] Heard the submissions made at the Bar. Perused the record.
Affidavit-in-opposition has also been filed on behalf of the respondent on
24.06.2025.
[8] It is observed by this Court that the reason for long delay of 1089
days in filing the appeal, has mainly explained by the applicant in the instant
application at paragraph-8, and in reply, the respondent has opposed the
same in the paragraph-10 of the affidavit-in-opposition filed on 24.06.2025.
In this regard, the relevant contents from the present application and the
affidavit-in-opposition filed on behalf of the respondent are extracted as
under:
Paragraph-8 of the instant application:
"8. That, in fact, said Learned Advocate Mr. J. Islam could not come in Court due to
spread of Covid-19 for a reasonable time and he actually forgotten about the case and
he thought that appeal was filed by him but in fact no appeal was filed which was
subsequently came to the knowledge of the Defendant Appellants only on 10.03.2025
and thereafter, bitter relation was created amongst the Defendant Appellants and their
Learned Advocate."
Paragraph-10 of the affidavit-in-opposition dated 24.06.2025:
"10. In regard to the statements made in paragraph No. 8 of the instant application, the
answering respondent most respectfully submits that the appellants' statement that the
mistake came to light only on 10.03.2025 is clearly an afterthought and contrary to
record, aimed solely at creating an illusion of sufficient cause. Hon'ble Courts have
consistently held that ignorance of the status of one's own litigation, particularly when
one is actively participating in related proceedings, cannot constitute a valid explanation
under Section 5 of the Limitation Act.
10.1. It is humbly submitted that the plea taken by the appellants regarding the alleged
inability of their engaged learned counsel to appear before the Court due to the spread
of COVID-19, and his subsequent forgetfulness about the case, is a deliberate
misrepresentation of facts and not a bona fide explanation. The assertion that the
counsel mistakenly believed that the appeal had already been filed is highly improbable
and inconsistent with the professional responsibilities of an Advocate. Such a statement
is plainly misleading, as it seeks to portray a casual lapse as an innocent mistake, while
in reality, it is an evasive tactic employed to justify the inordinate delay without any
valid or sufficient cause.
The assertion that the learned advocate believed the appeal was already filed is
also entirely baseless and legally unsustainable. An appeal is a formal legal process that
involves verified pleadings and docketing before the registry. The filing of an appeal
cannot be presumed or assumed casually by any litigant, much less by a practicing
counsel.
10.2. It is further submitted here that the appellant's narrative conveniently ignores
material facts that contradict the claimed ignorance. It is an admitted and undisputed
position that the respondent-plaintiff had initiated execution proceedings in the
competent Ld. Court for execution of the decree in the month of February, 2021 i.e. on
03.02.2021 and the same has been registered and numbered as Case No. Ex. (M) 01 of
2021. This clearly shows that the respondent decree-holder was actively pursuing legal
recourse to enforce the decree well before the appellants claim to have become aware of
the case status. Moreover, the respondent had taken active steps to execute the decree,
and the appellants were not only fully aware of such steps but took extraordinary
measures to resist it. This reinforces the conclusion that the appellants were not under
any genuine misconception or mistaken belief.
A copy of the execution application having Case No. Ex. (M) 01 of 2021, is
annexed herewith and marked as ANNEXURE -1.
10.3. Crucially, on 12.04.2021, the very same Learned Advocate who now claims to
have forgotten about the appeal entered appearance on behalf of all the appellants in
the execution proceedings and continued to actively represent them during the course of
the execution. The records of the execution case will confirm that he filed a memo of
appearance and regularly participated in the proceedings up to 17.05.2022. This
sequence of events not only shows the appellants' active participation in related
proceedings but also completely contradicts the plea of ignorance or mistaken belief
regarding the filing of the appeal.
Copies of the order dated 12.04.2021 and 17.05.2022, are annexed herewith
and marked as ANNEXURE - 2.
10.4. The foregoing facts incontrovertibly prove that the appellants and their counsel
were fully aware of the judgment and decree and its legal implications within a few
months of its pronouncement. The excuse of "forgetfulness" or having believed that the
appeal had already been filed is a fabricated and afterthought explanation, offered solely
to overcome the fatal bar of limitation. In light of the documented conduct of the
appellants and their counsel in the execution case, such a plea cannot be accepted as
either genuine or credible.
10.5. It is, therefore, most respectfully submitted that the explanation furnished by the
appellants is false, concocted, and not backed by any documentary evidence or affidavit
from the concerned counsel. The application is devoid of any material particulars and
lacks bona fides. Such a vague, evasive, and unsubstantiated explanation for a delay of
1089 days falls far short of the requirements under Section 5 of the Limitation Act,
which mandates that "sufficient cause" must be shown for each day's delay Accordingly,
this Hon'ble Court may be pleased to reject the condonation application as abuse of
process and devoid of merit.
10.6. Furthermore, the conduct of the appellants during the execution proceeding clearly
establishes not only their awareness of the decree but also their active and deliberate
attempts to obstruct its lawful execution. It is a matter of record that, pursuant to the
orders and directions of the Learned Executing Court, bailiffs were deputed to various
premises associated with the appellants for the purpose of executing the decree by way
of attachment of their properties. During such proceedings, the appellants, in a clear
attempt to prevent attachment, paid sums of ₹7,000/- and ₹6,000/-to the bailiffs with
the intent to deter them from executing the attachment. Significantly, the appellants
themselves filed an application on 21.03.2025 before the Learned Executing Court
narrating the entire incident and expressly admitting that such payments were made by
the appellants. In the said application, the appellants further prayed for an order
permitting them to cross-examine the concerned bailiffs, thereby affirming their full
knowledge of the proceedings and their conscious participation therein.
It is stated here that in the said application, the appellants not only admitted to
such mischief act of payments of money to the bailiffs but also prayed for permission to
cross-examine the concerned bailiffs. This act alone demolishes the claim that the
appellants were unaware of the status of the case or the fact that no appeal had been
filed. On the contrary, it reveals their awareness and involvement in resisting the
execution of the decree.
A copy of the application dated 21.03.2025, is annexed herewith and marked as
ANNEXURE - 3.
10.7 It is also a matter of record that the appellants had appeared in the execution
proceeding from 21.04.2021 to 17.05.2022 through their duly engaged Ld. Advocate,
who filed appearance and made submissions on their behalf on multiple occasions. It is
pertinent to mention here that the appellants not only appeared in the execution
proceeding pending before the Ld. Executing Court but also filed an objection under
section 47 of the Code of Civil Procedure which was registered separately and numbered
as Case No. CM. (J) 99 of 2021 and the same was disposed of by pronouncement of final
order dated 02.05.2022, passed by the Ld. Executing Court.
Copy of the objection under section 47 CPC, is. annexed herewith and marked as
ANNEXURE - 4.
Copy of the final order dated 02.05.2022, passed in Case No. CM. (J) 99 of
2021, is annexed herewith and marked as ANNEXURE-5.
10.8. However, thereafter subsequent to the date of 17.05.2022, the appellants
voluntarily refrained from participating in the execution proceeding and deliberately
chose not to comply with or respond to the several directions issued by the Learned
Executing Court. Such conduct amounts to willful disobedience of judicial orders and
reflects a clear attempt to delay and frustrate the execution of a lawful decree.
10.9. This sequence of facts not only exposes the falsehood of the appellants' plea of
ignorance or inadvertence regarding the decree or appeal status, but also reflects a
calculated misuse of the judicial process, thereby disentitling them to the equitable relief
of condonation under Section 5 of the Limitation Act....."
[9] Upon hearing the learned counsel appearing for the parties and on
perusal of averments made in the accompanying affidavit more particularly, in
paragraph-8 of the present appeal and paragraph-10 of the affidavit-in-
opposition filed by the respondent as quoted above, this Court finds that the
judgment and decree was passed by the trial Court on 07.02.2020 and the
same was corrected on 10.02.2020. Thereafter, respondent-plaintiff initiated
execution proceedings in the competent learned Court for execution of the
decree on 03.02.2021 and the same was registered and numbered as Case
No. EX. (M) 01 of 2021. It is reflected in the order 12.04.2021 passed the EX.
(M) 01 of 2021 that Mr. J. Islam for the judgment debtors no.2, 3 & 4 (who
now claims to have forgotten about the appeal) entered his appearance in the
execution proceedings. The order dated 17.05.2022 passed in the said
execution proceeding also shows the active representation of the said learned
counsel on behalf of the judgment debtors No.2, 3 & 4 (appellant-applicants
herein) during the course of execution.
In view of the above, this Court feels that the grounds which the
learned counsel for the applicants has placed, is not sufficient enough to allow
the present application for condoning the inordinate long delay of 1089 days.
Hence the same is dismissed.
Accordingly, this interlocutory application stands dismissed and
the same is disposed of. Resultantly, the connected appeal i.e. RFA 4 of 2025
shall also stand dismissed.
Biswajit Palit, J. Dr. T. Amarnath Goud, J.
Sabyasachi. G.
SABYASACHI GHOSH Digitally signed by SABYASACHI GHOSH
Date: 2025.06.30 15:26:31 +05'30'
