Can't Interfere With Discretionary Order Condoning Delay In Supervisory Jurisdiction U/Art 227 Unless There Is Total Non-Application Of Mind: Delhi HC

A single bench of Justice C. Hari Shankar observed,

"It is only where, therefore, there is complete non-application of mind in condoning delay which is inexorable, or where no reasons for condonation of delay are forthcoming in the order passed by the Court below, that an Article 227 Court would ordinarily interfere."

The observation was made in challenge to an order passed by the Civil Judge, condoning delay in application for substitution filed by legal heirs of the deceased Tara Devi (Respondent herein) in execution proceedings before the civil court, on the ground that the legal heirs did not have the knowledge of the execution proceedings. The Petitioner herein had also challenged an order refusing review of the said order allowing condonation of delay.

The counsel for the Petitioner argued that the counsel who had filed the civil suit on behalf of Tara Devi against the petitioner, was the Counsel who, later came to file the application under Order XXII Rule 3 of the CPC, engaged on behalf of the legal heirs of Tara Devi. Thus, it was submitted that no case for condonation of the delay in filing the application due to lack of knowledge is made out.

He also submitted that one of the legal heirs was present in the court on a particular date during the course of proceedings before the High Court.

Besides, he submitted that the application seeking condonation of delay was vague and did not disclose the date when knowledge of the execution proceedings was actually acquired by the legal heirs of Tara Devi.

Findings

At the outset, the Court observed that an order condoning delay is discretionary order in nature and the Article 227 Court would be loath to interfere thereafter.

In the facts and circumstances of the present case, the Court noted that the Petitioner has not relied on any positive material to indicate that the legal heirs of Tara Devi were, in fact, aware of the proceedings pending before the learned Civil Judge.

It was of the view that the Counsel who had initially filed the suit on behalf of Tara Devi against the petitioner also came, later, to file the application under Order XXII Rule 3, cannot lead to any such inference. Similarly, the fact that, in the order dated 11th August 2016, the presence of the legal representative of Tara Devi is recorded by the High Court, can also not lead to an inevitable inference that the said legal representative was also aware of the pendency of the execution proceedings before the Civil Judge.

It further held that Execution proceedings, even otherwise, are required to be accorded a treatment qualitatively different from that which is accorded to original proceedings.

"Once a party succeeds in a suit, and obtains a decree in her/his favour, the effort of the Court has, at all times, to see that the decree is executed and that execution of the decree is not impeded or hindered on technical considerations. The approach that the Court adopts during the course of trial in a suit is qualitatively different from the approach to be adopted while dealing execution proceedings."

Accordingly, the petition was dismissed.

Case Title: Madan Lal Suryawanshi v. Tara Devi (now deceased through its LRs)

Citation: 2022 LiveLaw (Del) 657

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