Surendra Kumar Jain vs Santobai

2025 INSC 230 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. OF 2025 (Arising out of S.L. P. (Civil) No.19657 OF 2024)

SURENDRA KUMAR JAIN … Appellant

VERSUS

SANTOBAI & ANOTHER … Respondent

JUDGMENT

Rajesh Bindal, J.

1. Leave granted.

2. The present appeal has been filed by the appellant

aggrieved by the order1 of the High Court 2 allowing the interim

application3 filed by the respondents seeking condonation of delay of

2,422 days in filing an application under Order XLI Rule 19 of the Code

Signature Not Verified Digitally signed by ASHA SUNDRIYAL Date: 2025.02.17 17:34:35 IST Reason: 1 Order dated 27.02.2024 2 High Court of Madhya Pradesh, Bench at Gwalior 3 I.A. No. 2677 of 2021 Page 1 of 13 of Civil Procedure (hereinafter referred to as the ‘CPC’), without

assigning any reason.

3. Briefly, the facts are that husband of respondent no. 1 and

father of Respondent no.2, one late Mangaliya Kushwaha 4 entered into

an agreement to sell5 the land bearing Survey No.1169 measuring

0.146 hectares, Survey No.1170 measuring 0.334 hectares, Survey

No.1171 measuring 0.899 hectares situated at Village Karhiya, Tehsil

Chinuar, District-Gwalior, Madhya Pradesh (hereinafter referred to

as the ‘suit property’) with the appellant herein for total sale

consideration of ₹2,00,000/-, and received a sum of ₹1,50,000/- as

earnest money. As per the terms of the said agreement to sell, late

Mangaliya Kushwaha was to execute the sale deed on or before

25.06.2006 upon receiving the balance sale consideration of ₹50,000/-

4. The appellant filed a civil suit6 against late Mangaliya

Kushwaha seeking specific performance of the agreement to sell

before Trial Court 7. The suit was decreed by the Trial Court vide

judgment and decree dated 17.11.2009.

4 Mangaliya Kushwaha died on 11.04.2015 5 Agreement to sell dated 25.06.2005 6 Civil Suit No. 7A/09 7 Court of 2nd Additional District Judge, Dabra, District Gwalior, Madhya Pradesh

Page 2 of 13

5. Being dissatisfied with the aforesaid judgment and decree,

late Mangaliya Kushwaha preferred appeal8 before High Court. As

court fee was not affixed with the appeal memo and other defects were

found in the appeal, the court directed him to cure the same. Despite

repeated opportunities he failed to deposit court fee and cure the

defects. Resultantly, the said appeal was dismissed by the High Court

vide order dated 22.08.2013 recording reasons that appellant therein

failed to deposit court fee as per order dated 15.07.2013 and also for

want of prosecution.

6. The appellant filed Petition9 for execution of the judgment

and decree dated 17.11.2009 and execution of sale deed in his favour.

During pendency of the execution petition, Mangaliya Kushwaha died

on 11.04.2015. The appellant filed an application under Order XXII Rule

4 of CPC for bringing legal representatives of late Mangaliya

Kushwaha, namely Santobai w/o Late Mangaliya Kushwaha, Hakim

Singh, Kalyan Singh, Devi Singh, Smt. Nattho w/o Late Shri Babulal

Kushwah and Smt. Sona w/o Late Shri Bhavani Kushwah, on record.

Notices were issued. As per service report, the legal representatives

of late Mangaliya Kushwaha refused to accept summons. As the legal

8 First Appeal No. 41 of 2010 9 Case No. 7A/2009 Page 3 of 13 representative of late Mangaliya Kushwaha failed to appear before the

executing court and raise objection to the draft sale deed, the court

vide order dated 18.05.2018 directed execution of sale deed in favour

of the appellant. The sale deed was executed in favour of the appellant

by the reader of the Court namely R.K. Jain under the authority of the

court and the same was registered on 28.07.2018. Subsequently, vide

order dated 03.07.2019 the Tehsildar directed patwari to mutate the

name of the appellant in revenue records and the appellant was put in

possession of the suit property.

7. On 05.06.2021 the respondents filed an application10 under

Order XLI Rule 19 of CPC seeking setting-aside of the order dated

22.08.2013 and restoration of the First Appeal No.41 of 2010. The

respondents also filed an application11 under Section 5 of the Limitation

Act, 1963 seeking condonation of delay in preferring the application

under Order XLI Rule 19 of CPC stating therein that they were not

having knowledge about filing of the appeal by late Mangaliya

Kushwaha and dismissal of the same. Further, they also pleaded that

they came to know about dismissal of appeal only when the name of

appellant was mutated in the revenue records. The said interim

10 Miscellaneous Civil Case No.612 of 2021.

11 I.A. No.2677 of 2021. Page 4 of 13 application was allowed by the High Court vide impugned order dated

27.02.2024 without assigning any reason. Resultantly, the Court

restored the first appeal. The said order is under challenge before this

Court.

8. Notice in the present appeal was issued on 14.08.2024 and

operation of the impugned order was stayed. The matter was listed

before the Registrar on 13.11.2024. As per the office report, service of

notice to the respondents was complete, however, no one entered

appearance on their behalf. The matter was directed to be listed before

the Court. On the next date of hearing, i.e., 06.01.2025, when the

matter was listed before the Court again no one appeared on behalf of

the respondents. This Court deferred adverse orders by giving last

opportunity to the respondents to appear. Again, when matter is listed

today, no one has entered appearance. It is in this situation that we have

proceeded to hear the counsel for the appellant on merits.

9. In this factual matrix one course could be to set-aside the

impugned order and remit the matter back to the High Court for

consideration of the application filed by the respondents/applicants

afresh. However, we do not deem it appropriate to adopt that

procedure considering the facts of the case, and that the litigation

started way back in the year 2008.

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10. As has already been noticed, in the impugned order the

High Court recorded no reason for condoning huge delay in filing

application for restoration of the appeal, which was dismissed for non-

prosecution and failure to deposit requisite court fee on 22.08.2013.

The order reads as under:

“Heard on I.A. No.2677/2021, an application under Section 5 of Limitation Act for condonation of delay.

For the reasons stated in the application, the same is allowed and delay is hereby condoned.

This is an application for restoration of F.A.No.41/2010, which stood dismissed for want of prosecution by order dated 22/08/2013.

The application is vehemently opposed by the counsel for the respondent.

For the reasons assigned in the application, which is supported by an affidavit, sufficient cause is made out for restoration of F.A.No.41/2010. Hence, the application is allowed and F.A.41/2010 is restored to its original number.

Appellants are directed to pay the Court fee as pointed out by the office within a period of one month from today.”

11. The application has also been placed on record. From the

averments made in the application it is evident that the period of delay,

condonation of which was sought, had not been mentioned. It was

stated therein that the names of the respondents/applicants were

mentioned in the revenue record as owner in possession, as the suit

property had already been partitioned. The present appellant got the

Page 6 of 13 sale deed registered in execution proceeding without notice to the

respondents/applicants. The respondents/applicants did not have

knowledge about the filing of appeal by late Mangaliya Kushwaha,

their predecessor in interest and the dismissal thereof on 22.08.2013.

The respondents/applicants came to know about this when the sale

deed was executed by the appellant and the names of the

respondents/applicants were removed from the revenue record and

mutation was entered in favour of the present appellant. The

respondents/applicants have already challenged the order of the

mutation in appeal, which is still pending. It was at that time they came

to know about dismissal of the appeal vide order dated 22.08.2013 and

applied for its certified copy on 09.04.2021, which was received on the

same day. The application is dated 05.06.2021. No explanation is

available as to why it took about two months to file the application after

the certified copy of the order was admittedly received.

12. To the aforesaid application, reply was filed by the present

appellant, the decree-holder. It was stated therein that the

respondents/applicants were also impleaded as parties in the

execution proceeding. It was in the reply to the application that the

present appellant mentioned that there was a delay of 2,422 days in

filing the application. From a perusal of the aforesaid contents of the

Page 7 of 13 application we find that the delay in filing the application seeking

restoration of the appeal, which was dismissed for non-prosecution and

non-payment of requisite court-fee, was 2,422 days, which had not

been explained sufficiently by the respondents/applicants seeking

condonation of delay. The High Court without recording any reason

whatsoever and by passing a cryptic order had allowed the same.

13. For seeing the conduct of the applicants, we need to refer

to the genesis of the litigation as well, and the proceedings that

culminated into passing of the decree by the Trial Court and its

execution.

14. It is evident from the record that late Mangaliya Kushwaha

(who died on 11.04.2015), husband and father of respondent Nos.1 and

2, respectively had entered into an agreement to sell the suit property

with the appellant for a total consideration of ₹2,00,000/-. Earnest

money of ₹1,50,000/- was received. The sale deed was to be executed

on or before 25.06.2006. On failure of the vendor-late Mangaliya

Kushwaha to execute the sale deed, the appellant-vendee filed Civil

Suit No.7A/2009 seeking specific performance of the agreement to sell.

The same was decreed by the Trial Court on 17.11.2009. The appellant

deposited the balance sale consideration of ₹50,000/- in the Court on

24.12.2009. Challenging the judgment and decree of the Trial Court,

Page 8 of 13 late Mangaliya Kushwaha filed appeal before the High Court bearing

F.A. No.41/2010. As is evident from the record no court fee was affixed

with the appeal memo.

15. From a perusal of various orders passed by the High Court

in the aforesaid appeal, it is evident that the same was presented on

18.02.2010. As per the office report, the registry raised the following

objections:

“i. No court fee affixed with appeal memo and certified copy of decree.

ii. Bar stamp not affixed with Vakalatnama.”

16. The order passed by the Assistant Registrar on 22.02.2010

shows that no one had appeared for the appellant in the appeal before

the High Court. The appeal was directed to be listed after 7 days if the

defects are cured, for which liberty was granted. Again on 03.03.2010

and 15.03.2010 time was granted to cure the defects. The order passed

by the Assistant Registrar on 25.03.2010 records that court fee and bar

stamp had not been filed by the appellant therein despite opportunity

being granted. The matter was directed to be listed in Court.

17. On 29.03.2010, when the matter was listed in the Court, on

request of counsel for the appellant therein, one weeks’ time was

granted for curing the defects and the appeal was to be listed

Page 9 of 13 thereafter for admission. Thereafter, on three dates the matter was

listed in Court and before the Assistant Registrar, however, the defects

were not cured.

18. When the matter was listed before the Court on 15.07.2013,

no one appeared before the Court on behalf of the appellant therein. It

was pointed out by the counsel for the respondent therein that court fee

had not been paid. The Court directed the appellant therein to deposit

the requisite court fee failing which the appeal was to stand dismissed

due to non-payment of court fee. The appeal was directed to be listed

on 22.08.2013. The order passed on 15.07.2013 is extracted below:

“None for the appellant.

Ms. Shweta Bothara, Advocate for the respondent No.1.

Shri R.D. Agarwal. P.L. for the respondent No.2/State. None is appearing on behalf of the appellant to purse the appeal.

Counsel for the respondent submits that Court fees is not being paid by the appellants for a long period. The appellant is directed to deposit the Court fees as per provision of the Court fees Act, failing which, the appeal shall stand dismissed due to non-payment of the Court fees.

Appeal be listed for further order on 22.08.2013.”

19. When the matter was listed on 22.08.2013 again no one

appeared for the appellant therein. Even court fee had not been Page 10 of 13 deposited. Hence, the Court dismissed the appeal for non-payment of

requisite court fee and also for non-prosecution.

20. The execution petition filed by the appellant was already

pending and having come to know that the judgement-

debtor/Mangaliya Kushwaha had expired on 11.04.2015 an application

dated 30.06.2015 was filed for impleading his legal representatives.

21. The order passed by the Executing Court dated 11.10.2017

records that notices sent to the legal representatives of the deceased

judgment debtor were returned back with the report of refusal to

accept the notice. Draft sale deed was placed on record by the

appellant/decree-holder. The matter was fixed for further

consideration on 13.11.2017.

22. On 18.05.2018 again no one represented the legal

representatives of deceased judgment-debtor. The Court appointed

Shri R.K. Jain to execute the sale deed on behalf of the Court. The sale

deed was registered on 28.07.2018.

23. After registration of the sale deed, the appellant moved an

application before the Tehsildar concerned seeking mutation of his

name in the revenue record. The order passed by the Tehsildar on

03.07.2019 records that no objections for recording the mutation in the

Page 11 of 13 name of the appellant had been received within time, hence, in terms

of the sale deed dated 28.07.2018 the suit property was directed to be

recorded in the name of the appellant.

24. It is the pleaded case of the appellant that the demarcation

was carried out and the appellant was put in possession of the suit

property. Meaning thereby this entire exercise took place in July-

August, 2019. Taking into consideration the aforesaid dates and the

pleading in the application for condonation of delay filed by the

respondents/applicants, it is evident that the respondents had the

knowledge of the decree, filing of appeal and dismissal thereof. It is

the pleaded case of the respondents/applicants in the application for

condonation of delay that they came to know about the proceedings,

when mutation was recorded in the name of the present appellant. Not

only this, he had been put in possession of the suit property in

execution of decree. Still, they had taken about two years in filing the

application seeking restoration of appeal, for which we do not find any

case is made out as the party has to remain vigilant to pursue his/their

case.

25. The appeal is allowed and the impugned order passed by

the High Court allowing the application for condonation of delay is set

Page 12 of 13 aside. As a consequence, the application for condonation of delay is

dismissed.

……………….……………..J. (M.M. SUNDRESH)

……………….……………..J. (RAJESH BINDAL) New Delhi January 17, 2025.

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