Isabella Mariam

In a recent judgement, the Division Bench of the High Court of Judicature at Madras, comprising Justice Anita Sumanth and Justice C. Kumarappan, dismissed two civil miscellaneous petitions seeking to appeal against an ex parte decree passed in a suit for specific performance. The court declined to condone a delay of 3814 days in filing the appeal and denied leave to a subsequent purchaser to initiate a separate appeal.

The suit originated as C.S. No.624 of 2005, wherein the plaintiff sought specific performance of a property sale agreement dated 08.10.1999 and 21.03.2001. An ex parte decree was granted in favour of the plaintiff on 15.06.2010. During the pendency of the suit, an interim injunction was granted in O.A. No.702 of 2005 on 21.07.2005, restraining the defendants from alienating or encumbering the suit property.

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Despite the subsisting injunction, the first defendant executed a sale deed in favour of Mr. Shanmugadurai in 2007. Following the decree, the plaintiff-initiated execution proceedings in E.P. No.407 of 2011. The first defendant failed to appear in the execution proceedings, resulting in a court-executed sale deed in favour of the plaintiff on 30.10.2011.

Applications were later filed by the first defendant to set aside the ex parte decree and condone the delay through A.No.2693 of 2011 and A.No.910 of 2016. Mr. Shanmugadurai also filed an application (A.No.911 of 2016) to be impleaded as a party to the suit. All applications were allowed by a Single Judge on 13.07.2016.

However, the plaintiff filed appeals (OSA Nos. 418, 420, and 421 of 2018) challenging these orders. The Division Bench reversed the Single Judge's decision on 25.10.2019. The first defendant and Mr. Shanmugadurai escalated the matter to the Supreme Court via SLP (Civil) Diary No.11836 of 2020, which was dismissed on 25.01.2021.

Subsequently, CMP No.6947 of 2022 was filed by the first defendant seeking to condone a delay of 3814 days in filing an appeal under Section 96(2) of the Code of Civil Procedure (CPC). CMP No.6949 of 2022 was filed by Mr. Shanmugadurai seeking leave to appeal as a subsequent purchaser.

The first defendant contended that his substantive right to appeal under Section 96(2) CPC remained intact despite the failed attempt to set aside the ex parte decree. It was submitted that the delay resulted from bona fide prosecution of earlier proceedings up to the Supreme Court. Reliance was placed on N. Mohan vs. R. Madhu [(2020) 20 SCC 302], arguing that the right to appeal is a substantive right and should be protected.

Mr. Shanmugadurai, represented by separate counsel, submitted that he was a bona fide purchaser for valuable consideration and that leave to appeal was necessary to protect his property rights.

In contrast, the plaintiff argued that the petitioners had no bona fide grounds and were seeking to initiate a second round of litigation after failing in earlier proceedings. It was contended that valuable rights had accrued to the plaintiff since 2011 and that the applications were intended to delay and harass.

The court recorded that "even if they have lost their attempt to set aside the ex parte decree, still they are entitled to file an appeal against the ex parte decree, as a matter of right." However, it clarified that the core issue for consideration was whether "sufficient cause [was] shown to condone the delay of 3814 days."

Reviewing the facts, the court noted the chronology of proceedings and stated: "the valuable right of ownership that had accrued since 2011 upon the plaintiff cannot be lightly interfered with, by mere filing of an application for condonation of delay without any bona fides."

The court relied upon the Supreme Court judgment in Pathapati Subba Reddy (Died) by L.Rs and others vs. Special Deputy Collector (LA) [2024 SCC OnLine SC 513], where it was stated: "the delay condonation application has to be decided on the parameters laid down for condoning the delay and condoning the delay for the reason that the conditions have been imposed, tantamounts to disregarding the statutory provision."

Further, the court referred to the judgment in Balwant Singh (Dead) vs. Jagdish Singh and others [(2010) 8 SCC 685], stating: "Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right."

Regarding the conduct of the first defendant, the court observed: "though there was an injunction by this Court in O.A. No.702 of 2005 vide order dated 21.07.2005, the conduct of the first defendant in selling the property in contravention of the injunction order... exhibits his mala fides and his unscrupulousness."

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The court dismissed CMP No.6947 of 2022, observing that there was no sufficient or bona fide reason to condone the delay. It also dismissed CMP No.6949 of 2022, noting that the subsequent purchaser had no better right than the original defendant.

The Order states: "we do not find any merits in the application in CMP.No.6947 of 2022" and "this CMP.No.6949 of 2022 is also dismissed." The court further stated: "both the CMPs and the OSAs in the SR stage are dismissed. There shall be no order as to costs."

Advocates Representing the Parties:

For the Appellants: Mr. R. Syed Mustafa, Ms. Y. Kavitha

For the Respondents: M/s. Vijayakumari Natarajan

Case Title: Shanmugadurai v. B. Balakrishnan & Ors. and V. Umapathy v. B. Balakrishnan & Ors.

Case Number: CMP Nos. 6949 & 6947 of 2022 in OSA SR No. 47388 & 47397 of 2021

Bench: Justice Anita Sumanth and Justice C. Kumarappan

[Read/Download order]