BALRAJ DANG Vs. ANAND KUMAR

JUDGEMENT

(1.) Both these applications have been head together and the same are being disposed of by a common order.

(2.) In the present case the judgment and decree was passed on 18.8.2005. The appellant applied for certified copy of the judgment and decree on 20.9.2005 which was received by him on 24.9.2005. According to the appellant the last date of filing of the appeal was 21.11.2005. Learned Counsel for the appellant submits that there are sufficient, reasonable and cogent grounds for condonation of delay in filing the appeal as well as the delay in refilling the appeal. Counsel for the appellant submits that the respondent had filed a suit under the provisions of Order 37 CPC. The High Court had passed a decree which led to the filing of Execution Petition No. 64/1994. It is contended that the parties herein arrived at an amicable settlement which was duly recorded by the High Court in its order dated 18.11.2005. It is submitted that in compliance with the settlement the appellant herein paid the respondent Rs. 26.50 lakhs in full and final settlement of all the disputes arising out of litigations pending between the parties. Counsel for the appellant submits that the appeal was prepared by him and was ready on 18.11.2005 but in view of the settlement arrived at between the parties, which is also evident from the subsequent order dated 7.12.2005, passed in the execution petition, as per which the sum of Rs. 26.50 lakhs were paid to the respondent herein, the appellant did not file the appeal. It is submitted that in utter violation of the terms of settlement the respondent herein in a mala fide manner filed an execution petition in the trial court. The appellant herein filed objections in the execution petition based on the amicable settlement. It is submitted that the objections were dismissed on 23.3.2007 and thereafter the appellant filed an EFA which was withdrawn on 30.1.2008. The order by which the objections of the appellant herein were dismissed was also challenged by filing CM(M) which was dismissed on 20.12.2008. Learned Counsel submits that the appeal was filed on 31.5.2007 beyond the period of limitation on account of the fact that the appellant was of the firm belief that parties have resolved their disputes and differences and thus he seeks condonation on this ground.

(3.) As far as the application for condonation of delay in refiling the appeal is concerned it is submitted that the appeal was filed on 31.5.2007, however, as the appellant herein was suffering from T.B. and acute back pain for which he was advised rest from 12.6.2007 to 18.1.2008, the appellant could not pursue the appeal and it is only after he recovered from his illness that he contacted his counsel on 21.1.2008 and thereafter on the same date it was found that appeal was lying under objection. The appeal was taken back, objections removed and refilled on 25.1.2008. Learned Counsel has placed strong reliance on the medical certificate which was issued by one Dr. Vinod Raina, as also copies of prescriptions in support of his arguments that the appellant was advised rest during the relevant period and thus he could not contact his counsel and the objections could not be removed and thus appeal could not be refilled. Counsel submits that the appellant has a strong case on merits and even otherwise there are sufficient reasons for condoning the delay. He also submits that the Court must take a liberal view in the matter and the delay in filing the appeal as well as the refilling of the appeal be condoned.