“Reportable “

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5875 OF 2005

Bhagmal & Ors.        …. Appellants

Versus

Kunwar Lal & Ors.       …. Respondents

J U D G M E N T

V.S. SIRPURKAR, J.

1. The  order  passed  by  the  High  Court  allowing  a  

Civil Revision and thereby restoring the order of the  

Trial Court is challenged herein.  A Civil Suit bearing  

No. 321-A of 1984 came to be filed by the respondents  

against  the  father  of  the  petitioner  No.  1  namely  

Kallu.  Kallu died during the pendency of the suit and  

his legal heirs were brought on record.  The suit was  

for  declaration  of  title,  possession  and  permanent  

injunction against the appellants/defendants in respect  

of the house in dispute.  The Court proceeded ex-parte  

and the decree came to be passed.  It is only when the  

execution  proceeding  started  that  the  

appellants/defendants allegedly came to know about the  

decree and moved an application under Order IX Rule 13  

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read  with  Section  151  of  the  Civil  Procedure  Code  

(hereinafter called ‘CPC’ for short) for setting aside  

the ex-parte decree.   

2. According  to  the  appellants/defendants,  this  

application was moved within 30 days from the date of  

their  knowledge  of  ex-parte  decree.   The  

appellants/defendants had pointed out that there was a  

compromise effected on 10.12.1983, which was an out-of-

Court  settlement,  wherein  it  was  agreed  between  the  

parties  that  the  respondent  No.  1/plaintiff  would  

withdraw  the  suit  on  account  of  the  understanding  

having  been  arrived  at  between  the  parties.   The  

appellants/defendants further pleaded that since it was  

the  understanding  between  the  parties  that  the  

respondent No. 1/plaintiff would withdraw the suit or  

get  it  dismissed,  they  did  not  attend  the  further  

proceedings,  which  the  respondent  No.  1/plaintiff  

continued surreptitiously and hence they did not even  

know  about  the  ex-parte  order  and  the  decree  passed  

against  them.   It  was  the  stand  of  the  

appellants/defendants  that  since  the  application  had  

been  moved  within  30  days  from  the  knowledge,  a  

separate application for condonation of delay was not  

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required.  The application under Order IX Rule 13 was  

dismissed  by  the  Trial  Court,  which  held  the  said  

application to be barred by time.  A Misc. Civil Appeal  

came to be filed in the Court of District Judge, Bhopal  

against that order.  There was some delay in filing the  

said  appeal  and,  therefore,  the  application  under  

Section  5  of  the  Limitation  Act  for  condonation  of  

delay was also filed.  The appellate Court held that  

the  application  filed  by  the  appellants/defendants  

under Order IX Rule 13 deserved to be allowed and held  

that the Trial Court had erred in law in not allowing  

the application.  The appeal came to be allowed and the  

appellate Court directed the Trial Court to decide the  

case on merits after hearing the parties.   

3. A Civil Revision came to be filed under Section  

115 CPC before the High Court.  The High Court took the  

view  that  the  application  filed  by  the  

appellants/defendants under Order IX Rule 13 was barred  

by time and the appellate Court had not recorded any  

finding on the question as to whether the filing of the  

application under Section 5 of the Limitation Act was  

necessary or not and, therefore, the appellate Court  

had  exceeded  its  jurisdiction  in  allowing  the  

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application  without  condoning  the  delay.   On  that  

count, the impugned order of the appellate Court was  

set aside and that of the Trial Court was restored.  

Ms. June Chaudhary, learned Senior Counsel appearing on  

behalf of the appellants invited out attention to the  

order of the appellate Court, by which the Order IX  

Rule  13  application  of  the  appellants/defendants  was  

allowed.  The learned Senior Counsel pointed out that  

the appellate Court had, on merits, discussed all the  

issues and had come to the finding that there indeed  

was a compromise effected in between the parties, in  

which there was an understanding arrived at that the  

respondent No. 1/plaintiff would withdraw his suit in  

pursuance  of  the  understanding  between  the  parties.  

The  learned  Senior  Counsel  also  pointed  out  that,  

therefore, the appellants/defendants never attended the  

Court after 10.12.1983.  This was tried to be countered  

with Shri M.P. Acharya, the learned Counsel appearing  

on behalf of the respondents that the order sheet of  

the suit showed as if the appellants/defendants were  

present  even  after  10.12.1983.   Our  attention  was  

invited  to  the  order  sheets  of  the  dates  after  

10.12.1983,  wherein  it  was  recorded  ‘parties  as  

before’.   On that basis Shri Acharya contended that  

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the appellants/defendants remained present in the Court  

and they had the knowledge of the proceedings. However,  

our attention was also invited to the finding by the  

appellate Court that those entries could not be relied  

upon because admittedly there were no signatures of the  

parties on any of those order sheets.  Therefore, one  

thing was certain that the appellate Court was right in  

holding  that  due  to  the  compromise  effected,  the  

appellants/defendants  did  not  attend  the  suit  and,  

therefore, were not knowing about the proceedings at  

all.   

4. The appellate Court also has pointed out that the  

evidence was led before the Trial Court in support of  

the application under Order IX Rule 13 and in that, the  

appellants/defendants had examined the witnesses like  

Rambharose  (AW-1),  Shanta  Bai  (AW-2),  Jabia  (AW-3),  

Babulal  (AW-4),  Bhagmal  (AW-5),  Genda  Lal  (AW-6),  

Dashrat  Singh  (AW-7),  Bhurra  @  Aziz  (AW-8)  and  Nand  

Kishore (AW-9).  The appellate Court also recorded the  

finding that the compromise deed was also got proved by  

the appellants/defendants in those proceedings through  

the  witnesses  who  asserted  that  the  compromise  deed  

bore their signatures.  The witnesses went on to say  

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that the compromise deed was also signed by the present  

respondents.  The appellate Court, therefore, rightly  

came to the conclusion that the appellants/defendants  

were justified in not attending the Court and that they  

did not even know about the decree having been passed  

and, therefore, the delay in presenting the application  

was also justified.  The appellate Court also referred  

to the evidence of respondent Kunwar Lal and came to  

the conclusion therefrom that indeed a compromise deed  

was executed between the parties.  The appellate Court  

also went on to express that the inference by the Trial  

Court that the compromise deed was doubtful, was also  

not correct.  The appellate Court has also dealt with  

the cross objections raised before it by the present  

respondents  to  the  effect  that  the  compromise  deed  

(Exhibit A-1) was prepared fraudulently.  The appellate  

Court  has  rejected  that  contention  in  the  cross  

objections and in our opinion, rightly.

5. This well considered order of the appellate Court  

came to be interfered with by the High Court solely on  

the  ground  that  there  was  no  application  for  

condonation of delay made by the appellants/defendants  

before the Trial Court in support of their application  

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under Order IX Rule 13 CPC.  The High Court observed  

that the appellate Court had not recorded any finding  

on  the  question  as  to  whether  the  filing  of  the  

application under Section 5 of the Limitation Act was  

necessary or not and went on to decide the application  

on  merits  and,  therefore,  it  had  exceeded  its  

jurisdiction.   The  High  Court  also  commented  on  the  

fact that the ex-parte decree was decided on 19.4.1985,  

while the application for setting aside the ex-parte  

decree was filed on 8.7.1988 and that no application  

for  condonation  of  delay  under  Section  5  of  the  

Limitation Act was filed.

6. Relying on Article 123 of the Limitation Act, the  

High Court took the view that the application ought to  

have been filed within 30 days from the date of passing  

of the decree and since it was not so filed, at least a  

condonation of delay application should have been made  

under Section 5 of the Limitation Act and, therefore,  

in the absence of prayer for condonation of delay, the  

appellate Court could not have allowed the application  

under Order IX Rule 13.

7. In our opinion, the High Court was not justified  

in taking a hypertechnical view.  We have seen all the  

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orders.  It is quite clear from the Trial Court’s order  

that  the  Trial  Court  entertained  the  application  on  

merits.  The Trial Court undoubtedly has referred to  

the reply of the respondents to the effect that the  

application for setting aside the ex-parte decree was  

beyond the limitation.  However, the view taken by the  

Trial Court was based more on the merits.  In fact, it  

went  on  to  record  the  finding  that  there  was  no  

compromise and the theory of compromise and delay on  

account of that was not acceptable.  The Trial Court  

has more or the less based its findings regarding delay  

on the basis of the order sheets.  That was not right  

as the order sheets nowhere bore the signatures of the  

parties.   They  were  mechanically  written  mentioning  

“parties as before”.  Therefore, the Trial Court did  

not throw the application under Order IX Rule 13 merely  

on  the  basis  of  the  fact  that  no  application  for  

condonation of delay was made.  It went on to consider  

the delay aspect as well as the merits and even allowed  

the parties to lead evidence.  It is to be seen here  

that the question of delay was completely interlinked  

with  the  merits  of  the  matter.   The  

appellants/defendants had clearly pleaded that they did  

not earlier come to the Court on account of the fact  

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that they did not know about the order passed by the  

Court proceeding ex-parte and also the ex-parte decree  

which was passed.  It was further clearly pleaded that  

they  came  to  know  about  the  decree  when  they  were  

served with the execution notice.  This was nothing,  

but a justification made by the appellants/defendants  

for making the Order IX Rule 13 application at the time  

when  it  was  actually  made.   This  was  also  a  valid  

explanation of the delay.  The question of filing Order  

IX  Rule  13  application  was,  in  our  opinion,  rightly  

considered  by  the  appellate  Court  on  merits  and  the  

appellate Court was absolutely right in coming to the  

conclusion  that  appellants/defendants  were  fully  

justified in filing the application under Order IX Rule  

13 CPC at the time when they actually filed it and the  

delay  in  filing  the  application  was  also  fully  

explained on account of the fact that they never knew  

about the decree and the orders starting the ex-parte  

proceedings against them.  If this was so, the Court  

had actually considered the reasons for the delay also.  

Under  such  circumstances,  the  High  Court  should  not  

have taken the hyper-technical view that no separate  

application was filed under Section 5.  The application  

under  Order  IX  Rule  13  CPC  itself  had  all  the  

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ingredients of the application for condonation of delay  

in  making  that  application.   Procedure  is  after  all  

handmaid of justice.  Here was a party which bona fide  

believed  the  assurance  given  in  the  compromise  

panchnama that the respondent No. 1/plaintiff would get  

his suit withdrawn or dismissed.  The said compromise  

panchnama was made before the elders of the village.  

Writing was also effected, displaying that compromise.  

The  witnesses  were  also  examined.   Under  such  

circumstances,  the  non-attendance  of  the  

appellants/defendants, which was proved in the further  

proceedings,  was  quite  justifiable.   The  

appellants/defendants,  when  ultimately  came  to  know  

about the decree, had moved the application within 30  

days.  In our opinion, that was sufficient.

8. Shri Acharya, learned Counsel appearing on behalf  

of  the  respondents  tried  to  argue  on  the  basis  of  

Article 123 of the Limitation Act.  However, in our  

opinion, Article 123 cannot be, in the facts of this  

case persuade us to take the view that the limitation  

actually  started  from  the  date  of  knowledge,  as  the  

appellants/defendants had no notice of the decree or  

the proceedings which the respondents had promised to  

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terminate. Shri Acharya then tried to persuade us by  

suggesting that unless the application was filed for  

condonation of delay, the court had no jurisdiction to  

entertain the application for setting aside the decree.  

He has based this contention on the basis of a reported  

decision of this Court in Sneh Gupta Vs. Devi Sarup &  

Ors.  [2009  (6)  SCC  194] and  more  particularly,  the  

observations made in para 70 therein.  In our opinion,  

the facts of this case were entirely different, as it  

was held in that case that the appellant had knowledge  

of passing of the compromise decree and yet she had not  

filed the application for condonation of delay.  That  

is not the situation here.  Even in this case, there is  

a clear cut observation in para 57, as follows:-

“However, in a case where the summons have not been  served, the second part shall apply.”

The  Court  was  considering  Article  123  of  the  

Limitation  Act.   In  our  opinion,  in  this  case,  the  

limitation must be deemed to have started from the date  

when the appellants/defendants came to know about the  

decree  on  22.6.1988.   An  application  under  Order  IX  

Rule 13 was filed within 30 days from that date and,  

therefore, it is clear that it was within time.   At  

any rate, even if it held that the limitation started  

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from  the  date  of  decree,  there  was  a  satisfactory  

explanation of the delay if any.

9. We, therefore, allow this appeal, set aside the  

judgment  of  the  High  Court  and  restore  that  of  the  

appellate Court.  The suit will now proceed before the  

Trial Court in pursuance of these orders.  Under the  

circumstances,  the  proceedings  of  the  suit  shall  be  

expedited.  There shall be no costs.

………………………………..J. (V.S. Sirpurkar)

………………………………..J.

(Dr.MukundakamSharma)

New Delhi; July 27, 2010

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