Separate Application for Delay Condonation Not Required with Application to Set Aside Ex-Parte Decree : Supreme Court
The Supreme Court, in Dwarika Prasad (D) Thr. LRs. vs. Prithvi Raj Singh, ruled that a separate delay condonation application under Section 5 of the Limitation Act is not mandatory when seeking to set aside an ex-parte decree under Order IX Rule 13 of the CPC, provided the application itself sufficiently explains the delay.
A bench comprising Justice Vikram Nath and Justice Prasanna B. Varale overturned an Allahabad High Court judgment, which upheld the First Appellate Court's decision that quashed the trial court's order restoring an ex-parte decree. The First Appellate Court reasoned that the absence of a separate delay condonation application made the restoration application non-maintainable.
The case involved an ex-parte decree declaring a sale deed null and void due to fraud. The appellant-defendant, an elderly and uneducated individual, argued that his previous counsel failed to inform him of the proceedings. The restoration application, filed five months later, explained this delay. However, the respondent-plaintiff contended that without a separate delay condonation application, the restoration was inadmissible.
The Court held that Order IX Rule 13 permits restoration if sufficient cause is shown, and the delay explanation within the application itself suffices, as established in Bhagmal & Ors. vs. Kunwar Lal & Ors. (2010). The Court criticized the High Court’s hypertechnical view, emphasizing that procedural requirements should not obstruct justice. It concluded that the appellant’s bona fide conduct justified the delay and allowed the appeal, restoring the ex-parte decree application.