SUPREME COURT OF INDIA

Before:- Ashok Bhan and A.K. Mathur, JJ.

Civil Appeals Nos. 4127 and 4128 of 1999. D/d. 27.1.2005.

P. Mani Moopanar - Appellant

Versus

K. Rajammal and others - Respondents

Limitation Act, 1963, Section 5 - Condonation of delay - Exercise is limited to examining sufficiency of cause shown to explain delay - Court may not condone delay on taking on overall view of the matter on merits - High Court can accept explanation given by respondents for condoning the delay, but without setting aside findings of trial court on sufficiency of cause shown, it cannot enter into merits of the dispute and condone the delay.

[Paras 4 and 5]

ORDER

Ashok Bhan, J. - The appellant herein had obtained a preliminary ex parte decree in a mortgage suit (being OS No. 142 of 1986) on 28-11-1989. The amount due under the preliminary decree is Rs 59,640. The respondent judgment-debtors (hereinafter referred to as "the respondents") were duly served in the suit and represented through a counsel.

2. As the respondents did not appear, the Court passed the ex parte decree on 28-11-1989. The appellant decree-holder took out proceedings under Order 34 Rule 5 Civil Procedure Code for passing of the final decree. At this stage, the respondents filed an application under Order 9 Rule 13 for setting aside the ex parte decree dated 28-11-1989, along with an application under Section 5 of the Limitation Act, 1963 (hereinafter referred to as "the Act") for condonation of delay of 2598 days. The trial court dismissed the application under Section 5 of the Act holding that sufficient cause to condone the delay of more than seven years had not been shown.

3. Aggrieved against the order of the trial court, the respondents filed revision petitions, which have been disposed of by the impugned order. The High Court has set aside the order of the trial court and condoned the delay by observing thus:

" Normally I would have been reluctant to interfere in this matter, but since the decree is based on a mortgage and the final decree is yet to be passed, there cannot be any doubt that the security is still available to the plaintiff to proceed further, if he ultimately succeeds. At the same time, the chances of succeeding in a mortgage suit by the defendants is not that easy. Taking an overall view of the facts and circumstances and solely with a view to give an opportunity to the defendants to contest the suit, especially when the security is available intact, to be proceeded with ultimately if the suit ends in a decree, I am inclined to allow IAs Nos. 31 and 32 of 1996."

4. The High Court was required to go into the question of sufficiency of cause shown to condone the inordinate delay of 2598 days which it did not do and, instead, proceeded to allow the revision petitions on taking an overall view of the matter on merits.

5. In our view, the High Court has erred in reversing the order of the trial court refusing to condone the delay. It was open to the High Court to accept the explanation given by the respondents for condoning the delay but, without setting aside the findings of the trial court on the sufficiency of cause shown, it was not permissible to the High Court to enter into the merits of the dispute and condone the delay.

6. For the foregoing reasons, these appeals are accepted, the impugned order of the High Court is set aside and that of the trial court is restored. No costs.

7. At this stage, counsel for the respondents stated that the respondents may be prepared to pay the amount as directed in the preliminary decree. If that be so, it shall be open to the respondents to pay the amount in the final decree proceedings before the trial court.

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