BABU KESAVAN Vs. PRAKASAN

JUDGEMENT

(1.) A rather ubiquitous application for condonation of delay in filing an appeal, the likes of which are virtually circadian in this Court now, has drawn certain important and climacteric issues for our consideration. What began as a usual hearing on an application seeking condonation of delay quickly transmuted itself, to a very large extent on account of the thorough submissions and sure assertions of the learned Senior Counsel Sri.R.D.Shenoy, ably assisted by Sri.Lakshmi Narayanan, appearing for the appellant and of Sri.Srinath Girish, learned counsel for the respondent, into one making deep inroads into the power and scope of considerations of this Court exercising discretion from the touchstone of equity, fairness and reasonableness.

(2.) The power of an appellate court to condone the delay in filing appeals is circumscribed only by the limitations contained in Order XLI Rule 3A of the Code of Civil Procedure ('the CPC' for short). The said provision is indubitable that the appellate court would be justified in condonation of delay only if the application shows sufficient cause for not preferring the appeal within the period of limitation.

(3.) The constitutive facts which led to this appeal at the hands of the defendants, in a suit for specific performance filed by the plaintiff, is that a decree was passed by the Sub Court, Kozhikode in O.S.No.279/2010 on 02.04.2013 ordering specific performance of an agreement for sale between them. The court below had passed the decree setting the appellants ex parte and had directed them to execute the sale deed in favour of the plaintiff within one month from the date of acceptance of the balance sale consideration. The appellants have filed this appeal after a fairly long period of time of nearly 1433 days and had sought to explain this delay primarily on the ground that they had invoked their 'alternative' remedies under Order IX Rule 13 of the CPC before the Sub Court to set aside the ex parte decree. According to the appellants, they had, on the decree being issued by the court below, filed I.A.No.4710/2013 to set aside the ex parte decree supported by I.A.No.4709/2013 to condone the delay of 122 days in filing the said application.