Banshi Lal Nagda vs Kesar Kunwar And Ors

The matter comes upon an application filed by the appellant seeking condonation of delay in filing the appeal.

Office has reported that the appeal is barred by 196 days.

Alongwith the appeal, an application under Section 5 of the Limitation Act has been filed seeking condonation of delay in filing the appeal, wherein, it is indicated that the appellant was convicted by the court of Additional Sessions Judge, Salumbar, Udaipur by judgment dated 12.01.2018 and was sent to serve the sentence at Central Jail, Udaipur and that the proceedings were held ex-parte against him.

It is claimed that the appellant came to know regarding passing of the judgment only when he received the notice regarding recovery of the amount pursuant to the decree. It is claimed that the delay in filing the appeal has occurred unintentionally and that there is sufficient cause for condonation of delay.

An additional affidavit has been filed by the appellant inter- alia seeking to elaborate the cursory application, which was filed alongwith the appeal, wherein, it is indicated that the appearance pursuant to the notice before the executing court was made on 04.10.2019 when the appellant came to know about passing of the judgment, whereafter certified copies were applied which were received on 15.10.2019. The file was handed over to the local counsel for getting the appeal filed before this court, however, it is claimed that the counsel assured that the requisite steps would be taken before the executing court itself.

However, when the requisite was not done, the appellant himself travelled to Jodhpur in last week of February 2020 and filed the appeal on 05.03.2020.

It is indicated that the appellant had no intention to cause delay in filing the appeal and that there is an apparent calculation error in the amount of compensation, which has been awarded and, therefore, the delay be condoned.

A detailed reply has been filed by the respondents inter-alia indicating that since beginning in the suit, the conduct of the appellant has been that of negligence and / or hoodwinking the court, inasmuch as, appearance was given before the court and then the matter was set ex-parte.

The co-defendants filed application under Order VII Rule 11 CPC, which was dismissed by the trial court.

It is further indicated that appellant was convicted on 12.01.2018, the sentence was suspended on 15.12.2018 and the execution application was filed on 29.08.2019 after the ex-parte judgment was delivered on 24.05.2019, wherein, the appellant had put in appearance before the executing court on 04.10.2019 when the matter was adjourned to 20 th October, 2019 and then to 3rd January, 2020, when an application was filed indicating that appeal has already been filed, which submission apparently was false to the knowledge of the appellant.

It is submitted that the conduct of the appellant does not entitle him to seek any indulgence from the Court.

Learned counsel for the appellant submitted that though there has been a delay in filing the appeal, however, the case of the appellant is genuine and on strong grounds, inasmuch as, there has been a clear calculation mistake by the executing court in awarding the compensation, inasmuch as, though the amount of personal expenses has been noticed, while calculating the total amount of compensation, the amount of said personal expenses of the deceased has not been deducted, resulting in, awarding excess compensation even if the award of compensation is justified and, therefore, looking to the issue raised and the fact that appellant has got a very strong case, the delay be condoned.

It was further indicated that during pendency of the appeal after the notices were ordered to be issued of application under Section 5 of the Limitation Act, the executing court has proceeded in the matter, wherein, property of the appellant already stands auctioned for a sum of Rs. 40,00,000/- and the auction purchaser has deposited the entire amount.

Submissions have also been made that the appellant has raised several objections before the executing court pertaining to the amount at which the property has been auctioned and the manner of auction, however, without dealing with the said application, the executing court is proceeding with the finalization of the auction.

Further submissions have been made that the appellant is prepared to make the payment of amount of compensation as per the actual calculation alongwith interest to the claimants within a period of one month.

Learned counsel for the respondents vehemently opposed the submissions.

It was submitted that the conduct of the appellant is apparent. However, learned counsel for the respondents fairly accepted that the amount of personal expenses has not been deducted by the executing court while deciding the quantum of compensation, however, qua the said mistake, an application under Section 152 CPC could have been filed / can be filed and for that purpose, the appellant is not entitled to any indulgence.

Further submissions have been made that already the amount has been deposited by the auction purchaser and if the time is granted to the appellant, the same may further delay the compensation to the respondents.

I have considered the submissions made by learned counsel for the parties and have perused the material available on record.

As already noticed hereinbefore, the appeal is delayed by 196 days, a wholly cursory application was filed alongwith the appeal seeking condonation of delay without indicating either the facts or the dates, however, apparently after the submissions were made before this Court on 04.09.2020, the additional affidavit has been filed indicating few facts seeking to justify the delay in approaching the Court and essentially laying the burden on the advice given by the local counsel.

A perusal of the order-sheet of the executing court dated 03.01.2020 produced by learned counsel for the respondents clearly indicates that indeed such an application was filed before the executing court indicating that an appeal has already been filed before this Court when factually no such appeal was filed.

The very fact that a submission regarding filing of the appeal was made before the executing court by way of application, gives some credence to the submissions, which have been made in the additional affidavit regarding the assurance given by the local counsel with regard to the steps being taken for defending the appellant.

So far as the submissions made pertaining to the merits of the appeal is concerned, as already noticed, learned counsel for the respondents himself has conceded that there is an apparent calculation mistake.

In the overall fact situation, though the overall conduct of the appellant cannot be appreciated, but as the appellant has some case on merits of the appeal, a strong case atleast qua the calculation, which has been made by the trial court, which is apparently erroneous, the delay in filing the appeal deserves to be condoned.

Consequently, the application filed by the appellant under Section 5 of the Limitation Act supported by the additional affidavit, is allowed. The delay of 196 days in filing the appeal is condoned.

Heard learned counsel for the parties on admission. Admit. Issue notice.

Mr. Sandeep Sarupariya appears for respondents No.1 to 6 and as respondents No.7 & 8 are proforma respondents, no need to issue notice to them.

In view of the fact that there is an apparent mistake in the calculation made by the trial court, after taking the said mistake into consideration and adding interest as awarded by the trial court i.e. 8% per annum, it is submitted by learned counsel for the parties that total amount due to the plaintiffs would be around Rs. 33,00,000/-.

In the circumstances of the case, if the appellant deposits a sum of Rs.16,50,000/- by 21 st September, 2020 and another sum of Rs.16,50,000/- by 5th October, 2020, further proceedings before the executing court in Execution Case No.27/2019 shall remain stayed till the next date.

In case, the appellant fails to deposit the respective amounts before 21st September, 2020 / 5th October, 2020, the interim order granted by this Court shall come to an end automatically and the executing court would be free to proceed with the execution of the decree.