advocatemmmohan

Civil Procedure Code, 1908 – Section 115 – Revisional jurisdiction – Interference with order refusing condonation of delay – Permissible where equities require balancing of competing interests – Para 8–9

Limitation Act, 1963 – Section 5 – Condonation of delay – Delay of 1035 days in filing restoration petition under Order XXI Rule 106 CPC – Sufficient cause not fully substantiated – Yet, serious triable claim and pre-attachment sale deed – Delay condoned subject to stringent condition – Para 5–9

Order XXI Rule 58 CPC – Claim petition in execution – Dismissal for default – Restoration – Effect of prior sale deed executed before attachment – Creates cloud over judgment debtor’s alienable interest – Para 7

Equitable Jurisdiction – Conditional Condonation – Deposit of entire decretal amount as condition precedent – Balancing interests of decree holder and third-party claimant – Para 8–9

FACTS (Para 2(a)–(f))

Suit in O.S.No.245 of 2015 filed for recovery of Rs.5,00,000/- with interest.
I.A.No.182 of 2015 under Order XXXVIII Rule 5 CPC for attachment before judgment.
On 18.04.2015 (after notice ordered on 13.04.2015), J.Dr. executed registered sale deed in favour of revision petitioner.
Suit decreed ex parte on 18.08.2015.
E.P.No.4 of 2016 filed for attachment and sale.
Petitioner filed claim petition under Order XXI Rule 58 CPC (E.A.No.178 of 2018).
Claim petition dismissed for default on 14.02.2023.
Restoration petition (E.A.No.405 of 2025) filed with delay of 1035 days along with delay condonation petition (E.A.No.272 of 2025).
Execution Court dismissed delay petition holding no sufficient cause shown.

ISSUE

Whether delay of 1035 days in filing restoration petition of a dismissed claim petition under Order XXI Rule 58 CPC can be condoned in exercise of revisional jurisdiction?

FINDINGS OF THE HIGH COURT

1. On Sufficiency of Cause (Para 5–6)

Plea of illness not supported by particulars or evidence.
Plea that counsel failed to inform not pleaded nor raised earlier.
Mere residence at distant place insufficient explanation.

Thus, strictly speaking, “sufficient cause” was not fully established.

2. On Substantive Rights Involved (Para 7)

However, Court noted:

Sale deed dated 18.04.2015 executed prior to attachment in execution.
This creates a cloud on J.Dr.’s alienable right over E.P. schedule property.
Decree holder’s interest is only recovery of money, not proprietary claim over property.
Serious adjudication required under Order XXI Rule 58 CPC.

3. Balancing Equities (Para 8)

Court adopted equitable balancing:

D.Hr.’s right to secure decretal amount must be protected.
Claimant’s right to contest attachment should not be foreclosed.

4. Conditional Relief (Para 9)

Order of dismissal set aside.
Delay condoned subject to:

Petitioner depositing entire E.P. due amount within two months from receipt of order.

CRP allowed.

ANALYSIS OF FACTS AND LAW

A. Restoration under Order XXI Rule 106 CPC

Order XXI Rule 106 permits restoration of execution applications dismissed for default.

Limitation applies; hence Section 5 principles govern.

Court must assess:

Bona fides,
Diligence,
Explanation for entire period of delay.

In present case, explanation was weak.

B. Interplay between Sale Prior to Attachment and Execution Rights

Key legal factor:

Sale deed executed on 18.04.2015.
Attachment before judgment notice ordered 13.04.2015.

If alienation preceded effective attachment, claimant’s right may survive, subject to:

Proof of bona fides,
Whether sale is collusive or sham.

These require adjudication in claim petition.

Thus, outright rejection would preclude adjudication of potentially valid proprietary claim.

C. Revisional Intervention – Equitable Correction

Under Section 115 CPC, interference is justified where:

Subordinate court’s order results in failure of justice.

Though delay explanation was weak, refusal would:

Deny adjudication of serious property rights.

Hence, Court exercised equitable discretion.

D. Conditional Condonation – Protective Mechanism

Imposing condition of depositing entire decretal amount:

Secures decree holder’s financial interest.
Prevents abuse of process.
Ensures seriousness of claimant’s assertion.

This reflects judicial balancing rather than mechanical application of limitation law.

RATIO DECIDENDI

Even where sufficient cause for delay in filing restoration of a claim petition under Order XXI Rule 58 CPC is not satisfactorily established, the High Court may, in exercise of revisional jurisdiction, condone the delay subject to stringent conditions—such as deposit of the entire decretal amount—where serious proprietary rights arising from a pre-attachment sale deed require adjudication and the decree holder’s interests can be adequately protected by conditional orders.

ADVOCATEMMMOHAN

Tuesday, February 17, 2026