REPORTABLE

      IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

     CIVIL APPEAL NOS. 2395  OF 2008

IMPROVEMENT TRUST, LUDHIANA      ..  APPELLANT(S)

                VERSUS

UJAGAR SINGH & ORS.              ..  RESPONDENT(S)

 WITH

CIVIL  APPEAL  NOS.  2397  OF  2008

O R D E  R

1 Heard counsel on either side at length. Records perused.

2 Even though both sides had cited several decisions of this  

Court on the scope and  application  of Section 5 of  

the Limitation Act, but it is neither necessary nor  

required to deal with those cases in the peculiar facts  

and circumstances of this case.

3 Land belonging to Respondent Nos. 1 to 4 was acquired by  

the  appellant  Improvement  Trust,  Ludhiana,  for  

development  scheme  popularly  known  as  “550  Acres  

Scheme”. Reference Court had passed the Award and fixed

the amount of compensation  at rupees 4,27,068.20 paise  

together with interest at the rate of 9% per annum from  

the date of the issuance of the notification in favour  

of  Respondent  Nos.  1  to  4.   The  appellant  did  not  

deposit  the  amount.  Respondent  Nos.  1  to  4  had  to  

approach the Executing Court for recovery of the amount  

awarded.   The  property  described  as  Khewat  No.867  

Khautani  No.971  Khasra  No.272  admeasuring  7K-18M  

entered in jamabandi for the year 1988-89 in village  

Jabaddi No.160 Tehsil and District  

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1 Ludhiana was attached for realisation of the decretal  

amount. Later a notice under Order 21 Rule 66 of the  

Code of Civil Procedure (hereinafter shall be referred  

to as `C.P.C.') was stated to have been issued to the  

appellant. However, despite service of notice,  none  

appeared on behalf of the appellant /judgment debtor.

2 The property was put to an auction sale on 12/8/1992.  

Respondent No. 5 herein, M/s. Jagan Singh and Company  

(hereinafter  shall  be  referred  to  as  `the  Company')  

offered Rs.22,65,000/-, and thus was declared as the  

highest bidder.  Sale was knocked down in its favour,  

and  later confirmed in its favour.   

3 The appellant then woke up from its slumber and filed  

objections under Order 21 Rule 90 CPC raising various  

grounds.   Executing  Court  then   framed  issues,  

reproduced by the learned Single Judge in the impugned  

order.  The case was thereafter fixed for recording of  

the evidence of  

4 judgment-debtor on 19/3/1993, 17/4/1993, 8/5/1993 and  

29/5/1993.  However,  on  the  aforesaid  dates  none  

appeared  on  behalf  of  the  appellant.   Consequently,  

the evidence of appellant/judgment debtor  was closed.  

As  a  necessary  consequence  thereof  appellant's  

objections came to be dismissed in default due to non-

appearance.  

5 Mr. P.K. Jain, Advocate used to appear for the appellant-

Trust, but did not appear on the above mentioned dates.  

The  order-sheet  dated  29/5/1993  reproduced  in  the  

impugned  order  passed  by  the  learned  Single  Judge  

reflected the same.  Case was posted for confirmation  

of sale on 5/6/1993, again  there was no appearance and  

the sale was confirmed in favour of respondent No.5. It  

is reported pursuant thereto  sale deed was executed in  

its favour  

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11 through court. Out of the bid amount of Rs.22,65,000/-  

the  awarded  amount  due  to  respondents  1  to  4  was  

released, and remaining is lying in deposit with the  

Executing Court.  

12 The appellant thereafter filed miscellaneous appeal before  

the  District  Judge,  Ludhiana,  challenging  the  

correctness propriety and validity of the orders passed

on  29/5/1993  and  5/6/1993,  made  over  to  Additional  

District  Judge,  Ludhiana.  Said  appeal  was  barred  by  

limitation by two months and few days, exact delay has  

not been reflected in  

13 any of the orders. But after going through the files it  

appears that delay was for about two months and few  

days. An application under Section 5 of the Limitation  

Act was filed to condone delay but was dismissed by the  

Appellate  Court  stating  therein  that  no  good  and  

sufficient grounds were shown for condonation of delay.  

Consequently the appeal was also dismissed.  

14 Thereafter,  appellant  under  some  mistaken  advice  filed  

execution second appeal in the High Court of Punjab and  

Haryana at Chandigarh registered as Execution Second  

Appeal No. 820 of 1994.  On objections being raised  

with regard to its maintainability,  in the light of  

the specific bar created under Section 104 of the CPC,  

learned Single Judge converted the appeal into civil  

revision and proceeded to decide as such.   

15 Respondent No.5 contended that no error was committed by

the  Executing  Court  in  dismissing  the  appellant's  

application  for  setting  aside  the  sale.  Similarly  the  

first  Appellate  Court  also  committed  no  error  in  

dismissing  the  Appellant's  appeal  as  no  good  and  

sufficient  cause  were  shown  for  condoning  delay.  The  

objections raised by respondent No.5 found favour by the  

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2 learned  Single  Judge  of  the  High  Court  and  the  

appeal/revision  of  the  appellant  was  dismissed  on  

9/5/2003.  In  the  light  of  the  aforesaid  orders  the  

objections  preferred  by  appellant  herein  purportedly  

filed under Order 21 Rule 90 of the CPC met with the  

fate of dismissal.  Appellant also filed an application  

for review of the order dated 9/5/2003 passed by High  

Court  under Order 47 Rule 1 of the CPC but was also  

dismissed  on  8/7/2004,   against  which  C.A.  No.

2395/2008  has  been  filed  before  this  Court.  Since  

parties  are  same  and  common  issues  arise  for  

consideration they are heard analogously and disposed  

of by a common order.   

3 Learned senior counsel appearing for appellant Mr. Salil  

Sagar with Mr. Arun K. Sinha, contended that appellant had  

been contesting the matter in right earnest  right from  

the very beginning and had implicit faith and confidence  

in his Advocate Mr. P.K. Jain, who had been appearing for  

the appellant not only in this case but in several other  

cases. According to him there was no reason to doubt that  

he would not appear on various dates of hearing and then  

would not even inform the appellant about the progress of  

the case.  In other words, it has been contended that  

whatever best was possible to be done by the appellant  

that had been done, therefore even though there has been  

some delay, on account of non-communication of the passing  

of the impugned order challenged in appeal, delay should  

have been condoned and the matter should not have been  

thrown at the threshold.  To show its bonafides various

order-sheets passed by Trial Court and the Executing Court  

have been brought to our notice. The envelop maintained by  

Mr. P.K.Jain, Advocate, for keeping the brief, has been  

filed  to  show  that  dates  of  hearing  were  mentioned  

therein.  

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1 On  the  other  hand,  Mr.  Vijay  Hansaria,  learned  senior  

counsel appearing for respondent No.5, with his polite  

yet usual vehemence submitted that list of dates as  

filed by the Company would show and reveal the callous  

and  negligent  attitude  of  the  appellant  or  its  

Advocate,  therefore no indulgence should be shown to  

it.  It was contended that the indifferent attitude of  

the appellant in prosecuting the matter had not come to  

an end and Appellant had learnt no lessons from its  

previous defaults.  

2 Even though appeal was dismissed by First Appellate Court  

on the ground of delay, stood confirmed by the High

Court but even the Special Leave Petition was delayed  

by 258 days in refiling there was further delay of  90  

days.   No  doubt  it  is  true  that  this  Court  after  

considering the appellant's application was pleased to  

condone delay and leave was granted. But this has been  

argued  by  Mr.  Vijay  Hansaria  to  show  the  conduct,  

behaviour  and attitude of the appellant in prosecuting  

the matter.   

3 Be that as it may, we are of the opinion that the delay in  

filing  the  first  appeal  before  District  Judge,  

Ludhiana, for setting aside the sale has not been so  

huge warranting its dismissal on such hypertechnical  

ground. In fact, according to us, appellant had taken  

all possible steps to prosecute the matter within time.  

Had there been an intimation sent to the appellant by  

Mr.  P.K.  Jain,  its  erstwhile  Advocate,  and  if  even  

thereafter appellant had acted callously then we could  

have understood the negligent attitude of the appellant  

but  that  was  not  the  case  here.   No  sooner  the  

appellant  came  to  know  about  the  dismissal  of  its

objection filed before the Executing  

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1 Court,  under  Order  21  Rule  90  of  the  CPC  it  made  

enquiries  and filed the appeal.  While considering the  

application for condonation of delay no straight jacket  

formula  is  prescribed  to  come  to  the  conclusion  if  

sufficient and good grounds have been made out or not.  

Each case has to be weighed from its facts and the  

circumstances in which the party acts and behaves. From  

the conduct behaviour and attitude of the appellant it  

cannot be said that it had been absolutely callous and  

negligent in prosecuting the matter.  Even though Mr.  

Vijay Hansaria appearing for the respondent No.5 has  

argued  the  matter  at  length  and  tried  his  best  to  

persuade  us  to  come  to  the  conclusion  that  no  

sufficient  grounds  made  out  to  interfere  with  the

concurrent findings of facts but we are afraid, we are  

not satisfied with the line of arguments so adopted by  

the counsel for respondent No.5 and cannot subscribe to  

the same.  

2 After all, justice can be done only when the matter is  

fought on merits and in accordance with law rather than  

to dispose it of on such technicalities and that too at  

the  threshold.   Both  sides  had  tried  to  argue  the  

matter on merits but we refrain ourselves from touching  

the merits of the matter as that can best be done by  

the Executing Court which had denied an opportunity to  

the appellant  to lead evidence and to prove the issues  

so formulated.   

3 In our opinion, ends of justice would be met by setting  

aside the impugned orders  and matter is remitted to the  

Executing Court to consider and dispose of  appellant's  

objections filed under Order 21 Rule 90 of CPC on merits  

and in accordance with law, at an early date.  It is  

pertinent  to  point  out  that  unless  malafides  are  writ  

large on the conduct of the party, generally as a normal

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1 rule, delay should be condoned.  In the legal arena, an  

attempt should always be made to allow the matter to be  

contested on merits rather than to throw it on such  

technalities.

2 Apart from the above, appellant would not have gained in  

any manner whatsoever, by not filing the appeal within  

the period of limitation. It is also worth noticing  

that delay was  also not that huge, which could not  

have been condoned, without putting the respondents to  

harm or prejudice. It is the duty of the Court to see  

to it that justice should be done between the parties.  

3 For the aforesaid reasons the impugned orders passed by  

Appellate Court, and order passed by the High Court,  

are hereby set aside and quashed.  As a consequence,  

the matter stands remitted to the Executing Court for  

deciding the appellant's application filed under Order

21 Rule 90 of CPC at an early date on merits.  Since  

there are only two contesting parties to the litigation  

that is to say the appellant and respondent No.5, both  

would appear before the Executing Court on 20/7/2010.  

Being an old case  an endeavour would be made by the  

Executing  Court  to   take  up  the  case  as  far  as  

possible, on day-to-day basis and no party would seek  

an undue adjournment in the matter. We make it clear  

that we have expressed no opinion, on the merits of the  

matter and any observation made herein would not be  

construed as an expression of opinion on merits.  

4 We are conscious of the fact that respondent No.5 has been  

put to inconvenience and harassment as admittedly it had  

deposited a huge amount of Rs.22,65,000/-  in the year  

1992 but has not been able to get any fruits thereof till  

date.  Therefore the appellant's appeal is allowed subject  

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1 to payment of Rs.50,000/- (Rupees fifty thousand) to  

respondent No.5 within three weeks hereof. Payment of  

cost  is  condition  precedent,  without  which  the  

appellant  would  not  be  allowed  to  prosecute  its  

objections.  The appeal therefore stands allowed to the  

aforesaid  extent.   The  appellant  to  bear  the  cost  

through out.  In the light of this order,   other civil  

appeal No. 2397/2008 stands allowed to the aforesaid  

extent only.

..................J.                                      (DEEPAK VERMA)

                     ...................J.           (K.S. RADHAKRISHNAN)

   New Delhi, June 9, 2010.