2026:MNHC:178-DB

Page 1 of 29

REPORTABLE

Sl. No. 17

IN THE HIGH COURT OF MANIPUR

AT IMPHAL

MC(RFA) No. 2 of 2026

Shri Hijam Roben Singh, aged about 49 years, S/o Late

Nilla Singh of Thoubal Nongangkhong Lai Leirak, P.O. &

P.S. Thoubal, Thoubal District, Manipur.

….. Applicant

-Versus-

Shri Okram Birendra Singh, aged about 75 years, S/o

Late O. Narahari Singh of Thoubal Haokha Mamang

Leikai, P.O. & P.S. Thoubal, Thoubal District, Manipur.

..... Respondent

BEFORE

HON’BLE THE CHIEF JUSTICE MR. M. SUNDAR

HON’BLE MR. JUSTICE A. GUNESHWAR SHARMA

For applicant Mr. T. Rajendra, learned senior counsel

instructed by Md. Shakir Khan, learned

counsel on record

For respondent Mr. L. Seityandra, learned counsel along

with Ms. N. Kavita, learned counsel on

record

Date of Judgment and

Order

14.08.2026

JUDGMENT AND ORDER

(ORAL)

[M. Sundar, CJ]

[1] Instant order has to be read in conjunction with and in

continuation of earlier proceedings made by this Court in the listing on

11.06.2026 and scanned reproduction of the proceedings made by this

Court on 11.06.2026 is as follows :

2026:MNHC:178-DB

Page 2 of 29

2026:MNHC:178-DB

Page 3 of 29

2026:MNHC:178-DB

Page 4 of 29

[2] In addition to the abbreviations, short forms and short

references used in afore-referred proceedings made in the listing on

11.06.2026, the following abbreviations, short forms and short

references shall also be used in instant order, obviously for the sake of

brevity/convenience and clarity and a tabulation in this regard is as

follows :

2026:MNHC:178-DB

Page 5 of 29

Sl.

No.

Abbreviation/

Short Form/

short reference

Full Form/Expansion

1. CoD Condonation of Delay

2. Limitation Act The Limitation Act, 1963 (36 of 1963)

3. Executing Court Court of Civil Judge Senior Division,

Thoubal, Manipur (to be noted, Executing

Court and said trial Court are one and the

same)

4. said Execution

Petition

Execution Petition No. 1 of 2021 on the file

of said Executing Court launched for

executing impugned decree inter-alia by

attachment and sale of immovable

property.

5. RFA Regular First Appeal (an appeal under

Section 96 of CPC)

6. DPN Demand Promissory Note

7. Cr.P.C. The Code of Criminal Procedure, 1973 (Act

No. 2 of 1974)

[3] In the hearing today, Mr. T. Rajendra, learned senior

advocate instructed by Mr. Md. Shakir Khan, learned counsel on record

for the CRP petitioner and Mr. L. Seityandra, learned counsel along with

Ms. N. Kavita, learned counsel on record on behalf of the sole

respondent are before this Court.

[4] Respondent has filed affidavit-in-opposition, MC applicant

has filed additional affidavit and pleadings are complete. Learned senior

counsel and learned counsel on both sides made elaborate submissions.

Captioned MC was heard out in full.

[5] As would be evident from earlier proceedings made by this

Court in the listing on 11.06.2026, captioned MC has been filed with a

2026:MNHC:178-DB

Page 6 of 29

CoD prayer qua 1662 days (more than four and half years) qua an RFA

against impugned decree which is an ex-parte money decree. In afore-

referred 11.06.2026 proceedings an inadvertent typographical error has

crept in. Covid period exclusion is from 15.03.2020 to 28.02.2022 (two

years) and not four years and two months. The point is, RFA with

captioned MC has been filed in this court on 21.05.2026 which is more

than 4 years and 2 months after Covid period two years exclusion had

elapsed on 28.02.2022. Instant order on being uploaded in official

website of High Court will serve as an Erratum/Corrigendum qua

paragraph 5 of afore-referred 11.06.2026 proceedings which is now an

integral part and parcel of this order. To be noted, RFA (along with

captioned MC) has been filed in this Court on 21.05.2026. The MC

applicant is sole defendant in said trial Court in said money suit.

Obviously, the lone respondent in captioned MC is sole plaintiff in said

money suit in said trial Court. It is also deemed appropriate to write

that post impugned decree, the MC applicant is judgment debtor and

the respondent in the captioned MC is the decree holder. As decree

holder, respondent launched said Execution Petition on 18.01.2021 and

it is now at a very advanced stage and there will be more allusion about

this elsewhere infra in this order.

[6] To be noted, for the sake of convenience and clarity, from

hereon and henceforth, in instant order, parties in captioned MC will be

referred to by their respective ranks in said trial court in said money

2026:MNHC:178-DB

Page 7 of 29

suit. This means that the ‘sole MC applicant’ shall be referred to as

‘defendant’ and the ‘sole respondent in captioned MC’ shall be referred

to as ‘plaintiff’.

[7] Factual matrix in a nutshell i.e., short facts shorn of,

elaboration and particulars not imperative for appreciating instant order

are that the defendant borrowed a sum of forty-four lakhs from the

plaintiff and executed a DPN dated 30.08.2015; that the plaintiff

demanded money under DPN in and vide a legal notice dated

30.11.2017; that the defendant received this legal notice/demand and

admittedly, the defendant neither replied nor complied; that thereafter,

the plaintiff presented said money suit in said trial Court vide a plaint

dated 04.12.2017 and the date of institution of the suit is 05.12.2017;

that the suit was assigned the number Original (Money) Suit No. 7 of

2017; that the said Money Suit was filed by the plaintiff by resorting to

Order XXXVII of CPC; that this means that the said Money Suit is a

summary suit; that on receipt of suit summons, the defendant entered

appearance, obviously within the prescribed time limit as defendant

applied for leave to defend and leave to defend was granted by said

trial Court in and by an order dated 03.05.2018; that the defendant did

not file written statement though leave was granted and the order

granting leave had become final; that it is to be noted that written

statement has not been filed by defendant until the impugned decree

was made by said trial Court on 05.08.2019; that, to be noted, there is

2026:MNHC:178-DB

Page 8 of 29

no written statement on file even today; that post grant of leave to

defend on 03.05.2018, the defendant was set ex-parte vide Order IX

Rule 7 and this was in and by an order dated 21.07.2018; that the

defendant filed Judicial MC No. 74 of 2019 with a prayer to set aside

the order dated 21.07.2018 setting him ex-parte but this was also

rejected by the trial Court in and by an order dated 17.06.2019; that

the defendant came to this Court by way of a CRP under Article 227 of

the Constitution of India assailing the order setting him ex-parte in said

money suit and this is CRP (CRP Art. 227) No. 39 of 2019; that this CRP,

after full contest, was dismissed by a detailed order by Hon’ble

predecessor Chief Justice in and by an order dated 18.07.2019; that

this 18.07.2019 order of this Court made in CRP (CRP Art. 227) No. 39

of 2019 dismissing defendant’s challenge to the order setting him ex-

parte has been given finality; that it has attained finality and has been

given legal quietus, as admittedly the defendant has not carried the

matter to Hon’ble Supreme Court; that thereafter, the said trial Court

made the ex-parte judgment and decree (Money Decree) dated

05.08.2019 which are collectively, for the sake of convenience being

referred to as ‘impugned decree’ in instant order; that the impugned

decree was made after examining 3 (three) witnesses on plaintiff’s side

(PW1 to PW3) and marking of 8 (eight) exhibits; that when this ex-parte

decree was made, while the year of the suit was correctly shown as

2017 in the judgment, it was wrongly shown as 2018 in the decree; that

2026:MNHC:178-DB

Page 9 of 29

this was corrected by an order dated 04.05.2026 made by said trial

Court and this obviously is an order under Section 152 of CPC as it is

clearly a case of clerical error i.e., an accidental slip and it is nobody’s

case that the correction impacts the outcome of the decree in any

manner; that it is to be noted that this impugned decree was made after

drawing up and setting out 4 (four) points for determination; that post

impugned decree, defendant filed an application for setting aside the

ex-parte decree (impugned decree) by resorting to Order IX Rule 13 of

CPC; that this application was filed along with a CoD application; that

interestingly and intriguingly this CoD application and the application to

set aside the ex-parte decree were numbered simultaneously and more

intriguingly the application to set aside the ex-parte decree has been

given a prior number i.e., one number prior to the CoD application; that

it is to be noted that the CoD application is Judl. MC Case No. 59 of

2022 and the application to set aside the ex-parte decree is Judl. Misc.

Case No. 58 of 2022; that this is clearly an erroneous procedure as an

application filed with delay can be numbered only after the delay is

condoned; that doing the reverse is putting the cart before the horse

besides being a legally incorrect procedure as any petition, appeal or

application filed after prescribed period of limitation cannot be heard on

merits without the delay being condoned; that owing to the perimeter

of legal drill at hand, we refrain from dilating more on this but suffice

to write that all courts in Manipur shall ensure that such an erroneous

2026:MNHC:178-DB

Page 10 of 29

procedure is not followed (to be noted, we find such a procedure in

many cases and that has impelled us to pen this part); that under such

circumstances, the CoD application being Judl. Misc. Case No. 59 of

2022 was allowed by said trial Court vide judicial order dated

27.02.2023, it is to be noted that it was allowed on terms i.e., Rs. 500/-

(rupees five hundred) to be paid to the plaintiff; that learned counsel

for plaintiff, on instructions from plaintiff, submits that this Rs. 500/-

has not been paid to the plaintiff until this date and there is no contra

material before this Court on the side of defendant in this regard; that

under such circumstances, said trial Court, took up Judl. Misc. Case No.

58 of 2022 and dismissed the same by way of judicial order dated

02.03.2026; that it is to be noted that this 02.03.2026 order dismissing

defendant’s Order IX Rule 13 application has not been assailed further

until today; that under such circumstances, as already alluded to supra,

the minor clerical error owing to accidental slip in the decree qua the

decree part of impugned decree was corrected on 04.05.2026 by way

of a judicial order; that in the interregnum, said Execution Petition was

launched by the decree holder, it proceeded and it had reached a stage

where the said executing court ordered attachment on 01.04.2026 and

fixed the next date as 04.05.2026 calling for a report; that on

04.05.2026, the matter was listed for report qua attachment; that it is

after this 04.05.2026 proceedings of said executing Court, when the

executing court had fixed the next date as 01.06.2026, RFA with

2026:MNHC:178-DB

Page 11 of 29

captioned CoD MC has been filed in this Court on 21.05.2026; that as

already alluded to supra, captioned MC has been filed with a CoD prayer

qua 1662 days delay in filing RFA; that it is under such circumstances,

captioned MC was heard out elaborately.

[8] This Court now proceeds to set out the contentions,

counter-contentions and set out its discussions and dispositive

reasoning one after the other and an adumbration of the same is as

follows :

(i) Learned senior counsel for defendant,

adverting to 27.02.2023 order made in Judl.

Misc. Case No. 59 of 2022 (CoD application

which was allowed on terms of Rs. 500/- to

be paid to plaintiff), adverted to paragraph 7

thereat and submitted that said trial court has

observed that explanation for delay in

obtaining certified copies of the judgment and

order dated 05.08.2019 appears to be

acceptable as the functioning of the Court was

affected by Covid 19. It was also pointed out

that certified copies were obtained on

02.03.2021 and the defendant had filed the

CoD application on 19.03.2021 which is within

2026:MNHC:178-DB

Page 12 of 29

30 (thirty) days. It was submitted that said

trial Court has observed that the CoD

application qua Order IX Rule 13 application

was filed within time. However, the Order IX

Rule 13 application (which was numbered

even before delay was condoned and

assigned a number prior to CoD application)

came to be dismissed by way of a judicial

order dated 02.03.2026 and as rightly pointed

out by learned counsel for plaintiff the same

has not been assailed by the defendant in any

manner until this day and therefore, the

argument that said trial court has noticed that

the CoD application qua Order IX Rule 13

application has been filed within time is of no

avail as regards the captioned MC and it does

not come to the aid of the MC applicant as

02.03.2025 dismissal order (dismissing Order

IX Rule 13 application has not been

challenged). This puts an end to the first point

urged;

(ii) The next point that was urged is, time spent

in Order IX Rule 13 application should be

2026:MNHC:178-DB

Page 13 of 29

excluded. In support of this contention,

learned senior counsel pressed into service

Bhivchandra Shankar More Vs. Balu

Gangaram More and Others reported in

(2019) 6 SCC 387. On facts, Bhivchandra

is a case which arose out of a partition suit.

More importantly, in Bhivchandra, on facts,

aggrieved by the dismissal of the Order IX

Rule 13 application on 03.09.2010, the

appellant before the Hon’ble Supreme Court

and two respondents filed a Civil Appeal and

the same was withdrawn on 11.06.2013 but

on the very next day i.e., 12.06.2013, the

appellant and the two respondents (R14 and

R15) filed a Regular First Appeal challenging

the ex-parte decree passed in Regular Civil

Suit thereat. These facts are captured in

paragraphs 3 and 4 of Bhivchandra. Before

respectfully adverting to Bhivchandra which

was pressed into service by learned senior

counsel for defendant/MC applicant, this

Court deems it appropriate to respectfully

refer to oft quoted and celebrated

2026:MNHC:178-DB

Page 14 of 29

Constitution Bench judgment in Padma

Sundara Rao reported in (2002) 3 SCC

533 { Padma Sundara Rao (Dead) and

Others Vs. State of T.N. and others}.

Padma Sundara Rao having been rendered

by a Hon’ble Constitution Bench, is more a

declaration of law than a ratio. Be that as it

may, Padma Sundara Rao is an

authority/declaration of law regarding how

case laws have to be referred to. On facts,

Padma Sundara Rao arose under Central

Land Acquisition Act. The question in Padma

Sundara Rao was, after quashing of land

acquisition proceedings under Central Act

whether the State will get a fresh period for

making declaration under Section 6 of the

Central Act. In this fact scenario, Hon’ble

Supreme Court declared the law as to how a

case law has to be relied on. It was made clear

that Courts should not place reliance on

decisions without discussing as to how the

factual situation fits in with the fact situation

of the decision on which reliance is placed and

2026:MNHC:178-DB

Page 15 of 29

it was made clear that c ircumstantial

flexibility, one additional or different fact may

make a world of difference between

conclusions in two cases. This declaration of

law was made inter-alia by relying on

articulation of Lord Morris in the celebrated

Herrington Vs. British Railways Board

reported in (1972) 2 WLR 537. Relevant

paragraph in Padma Sundara Rao is

paragraph 9 and the same reads as follows :

‘9. Courts should not place reliance

on decisions without discussing as to how

the factual situation fits in with the fact

situation of the decision on which reliance

is placed. There is always peril in treating

the words of a speech or judgment as

though they are words in a legislative

enactment, and it is to be remembered that

judicial utterances are made in the setting

of the facts of a particular case, said Lord

Morris in Herrington Vs. British Railways

Board (1972) 2 WLR 537.Circumstantial

flexibility, one additional or different fact

may make a world of difference between

conclusions in two cases.’

In the light of Padma Sundara

Rao, this Court very respectfully read

through facts in Bhivchandra and finds that

it is clearly distinguishable on facts for at

least two reasons. The first reason is,

2026:MNHC:178-DB

Page 16 of 29

Bhivchandra arose out of a partition suit

and in a partition suit as much as there are

no plaintiffs and no defendants, there is no

limitation too. The second reason is, in

Bhivchandra, as adverted to in the earlier

part of this order, on dismissal of Order IX

Rule 13 application, the appellant with two

respondents filed an appeal assailing the

same, withdrew the same but on the very

next date, regular first appeal was filed.

(iii) In the case at hand, it is a money suit and

more so, a money suit filed by resorting to

Order XXXVII of CPC i.e., a summary suit

and the money suit is predicated on a DPN.

Be that as it may, the second distinguishable

feature is, challenge to the Order IX Rule 13

dismissal has never happened in instant

case. For these reasons, this Court has no

hesitation in respectfully writing that

Bhivchandra is clearly distinguishable on

facts and therefore, does not come to the aid

of the defendant/(MC applicant) in the

instant case.

2026:MNHC:178-DB

Page 17 of 29

(iv) Learned senior counsel pressed into service

Koushik Mutually Aided Cooperative

Housing Society -vs- Ameena Begum &

Anr. reported in 2023 Legal Eagle (SC)

1212 and submitted that Order IX Rule 13

dismissal does not come in the way of RFA.

We respectfully and carefully read through

Ameena Begum . This Court finds that

Ameena Begum is an authority for the

proposition that an appeal will lie and an

appeal i.e. a regular first appeal under

Section 96 of CPC is maintainable even if an

application for setting aside ex-parte decree

under Order IX Rule 13 has been dismissed.

There can be no quarrel of this proposition.

There can be no quarrel that even an ex-

parte decree is appealable but in the instant

case, we are not now on the maintainability

of RFA. This Court is now examining the CoD

application and as to whether sufficient

reasons have been shown for condonation of

delay qua RFA which has been filed on

21.05.2026 in this Court with a delay of 1662

2026:MNHC:178-DB

Page 18 of 29

days. Therefore Ameena Begum also does

not come to the aid of the MC

applicant/defendant in the case at hand i.e.,

in the captioned MC application as captioned

MC application is one that has been filed with

CoD prayer (1662 days delay) qua RFA.

(v) As regards sufficient cause qua Section 5 of

Limitation Act, learned senior counsel

pressed into service Collector Land

Acquisition, Anantnag & Anr. -vs- Mst.

Katiji & Ors. reported in AIR 1987 SC

1353. This case law shall be referred to as

Katiji for the sake of convenience. Relying

on Katiji case, learned senior counsel

submitted that the expression ‘sufficient

cause’ employed by the legislature is

adequately elastic to enable the Courts to

apply the law in a meaningful manner

which subserves the ends of justice that

being the life and purpose for the existence

of institution of Courts. As regards Katiji

case, on respectfully following/applying

Padma Sundara Rao declaration of law

2026:MNHC:178-DB

Page 19 of 29

about which there is allusion supra, it is

clear that Katiji is distinguishable on facts

and it does not come to the aid of the MC

applicant/defendant. The reason is, Katiji

is a case where four days delay was sought

to be condoned and the 4 days delay

sought to be condoned was qua assailing

upward revision of compensation for land

acquisition and upward revision of 800%

(percentage). Therefore, this Court

respectfully holds that Katiji also does not

come to the aid of MC applicant/defendant.

Be that as it may, we are respectfully

applying the principle i.e., ensuring that it

subserves the ends of justice not only for

defendant but for plaintiff also who got a

money decree on the basis of a DPN way

back in 2019. Learned senior counsel

pressed into service State Of Nagaland

vs Lipok Ao & Ors reported in (2005) 3

SCC 752. Lipok Ao is an authority for the

proposition that in delay condonation

applications, what counts is sufficiency of

2026:MNHC:178-DB

Page 20 of 29

cause more than the length of delay though

shortness of delay is one of the

circumstances that can be taken into

account in using discretion to condone

delay. 1662 days delay is not short by any

yardstick. This Court will now examine the

reason for delay given by the MC

applicant/defendant infra. Before doing

that, this Court deems it appropriate to

write that this is a case qua delay of 1662

days (more than 4 and half years) in

contradistinction to facts in Lipok Ao

where it was a case of 57 days delay in

filing an application for grant of leave in

terms of Section 378 of erstwhile CrPC. To

be noted, Section 378 of erstwhile CrPC

deals with appeals against acquittal and

Lipok Ao was a case where State went on

appeal against acquittal and there was a

delay of 57 days. Nonetheless, the cause

shown and whether it is sufficient cause

within the meaning of Section 5 of the

2026:MNHC:178-DB

Page 21 of 29

Limitation Act in the instant case will be

examined in the following paragraphs infra.

(vi) As regards the cause shown, it is to be

noted that even according to averments of

MC applicant/defendant, the defendant

applied for certified copy of the impugned

judgment and decree (impugned decree)

on 19.08.2019 and ultimately obtained the

same on 02.03.2021 and this averment is

in paragraph No. 6 of captioned MC

application. This means that 19.08.2019 is

clearly the date of knowledge of the

defendant with regard to the impugned

decree but the RFA with captioned MC has

been filed on 21.05.2026 that too after

attachment order of executing Court and

report regarding attachment qua the

executing Court i.e., at an advanced stage

of the execution proceedings. The burden

of the song as regards the cause for delay

is, some deficiencies and difficulties on the

part of erstwhile learned counsel for

defendant in the said Trial Court and then

2026:MNHC:178-DB

Page 22 of 29

a change of counsel in said Trial Court.

Another reason that is being cited is the

exclusion of the Covid period i.e.,

15.03.2020 to 28.02.2022 which was

excluded across the Board by Hon’ble

Supreme Court in and vide a judicial order

dated 10.01.2022 made in Suo-Moto Writ

Petition No. 3 of 2020 (In Re:

Cognizance for Extension of

Limitation). While there can be no

disputation or contestation as regards this

period, the question is whether MC

applicant/defendant can claim benefit of

exclusion of this period. As would be

evident from 11.06.2026 proceedings

made by this Court and more particularly

paragraph No. 5 thereat, the excluded

period elapsed on 28.02.2022 but RFA with

captioned MC has been filed in this Court

only on 21.05.2026, more than 4 years and

2 months after the excluded period

elapsed. To be noted, Hon’ble Supreme

Court, while excluding the period from

2026:MNHC:178-DB

Page 23 of 29

15.03.2020 to 28.02.2022, made an order

even before 28.02.2022 as the order of

Hon’ble Supreme Court is dated

10.01.2022. Therefore, Hon’ble Supreme

Court, while making order dated

10.01.2022 had provided a further window

of nearly 7 (seven) weeks. As an

illustration, if Court vacation intervenes and

if period of limitation elapses on a date

during Court vacation, if the

application/petition/appeal is filed on the

re-opening day, the period of vacation will

be excluded but if the same

application/appeal/petition is filed even

one day after re-opening, vacation period

will be added to the period sought to be

condoned. The same principle will operate

the instant case too. When the excluded

period elapsed on 28.02.2022, the MC

applicant cannot now be heard to contend

that the period which ended on 28.02.2022

should be excluded in the captioned MC

2026:MNHC:178-DB

Page 24 of 29

which has been filed more than 4 years and

2 months later on 21.05.2026.

(vii) Learned senior counsel, placed before this

Court an order made by one of us (M.

Sundar, CJ) sitting as Single Bench in

Nongmaithem Tolhal Singh -vs-

Nongmaithem Maintomba Singh

reported in 2026 (1) MNLJ 117 : 2026

Legal Eagle 5. In Tolhal Singh, at the

outset, this Court makes it clear that

though Tolhal Singh case was authored

by one of us, the same was rendered by a

Single Judge Bench and therefore the same

cannot have any binding effect on this

Division Bench. Nonetheless, we carefully

considered Tolhal Singh. Tolhal Singh is

a case of litigation between two blood

brothers which has been passed on to their

legal heirs and which has been described

as an exception to the age old adage ‘blood

is thicker’. Be that as it may, it was a case

of two suits, a declaration suit and a

specific performance suit and while one

2026:MNHC:178-DB

Page 25 of 29

CRP was filed assailing dismissal of a

transfer petition, another CRP was filed

assailing dismissal of a judicial

miscellaneous case with recall prayer.

There was also a Section 10 CPC

application. It is in this context, this Court

held that the Trial Court order caused

prejudice to both sides. It is not a case of

condonation of delay petition. It is not a

case where question as to when a party will

be entitled to seek benefit of

Re:cognizance Supreme Court order and

seek exclusion of period from 15.03.2020

to 28.02.2022. Therefore suffice to write

that Tolhal Singh does not in any manner

come to the aid of MC applicant/defendant.

(viii) Another point of contention is, impugned

decree i.e. ex-parte money decree is not a

decree made under Order XXXVII but a

regular decree. Submissions were made to

the effect that even for a ex-parte decree,

the plaintiff has to discharge burden of

proof. These are all in the realm of merits

2026:MNHC:178-DB

Page 26 of 29

of the matter and the defendant who has

not chosen to file written statement and

who has not chosen to assail the earlier

CRP order of this Court dismissing the

challenge to Order IX Rule 7 orders cannot

now be heard to contend on this aspect of

the matter. Be that as it may, without going

into merits, on a cursory examination, we

find that while making impugned decree, in

said Trial Court, as already alluded to

supra, three witnesses were examined

(PW1 to PW3) and eight exhibits have been

marked. Therefore, it is not a case of a

judgment which has been made solely

because the defendant remained ex-parte.

(ix) There is another interesting and intriguing

aspect of the matter which impacts the

legal drill at hand. This is, on an extreme

demurer, even if the delay is condoned and

if the RFA is taken up, written statement of

the defendant is not before the Court. The

written statement of the defendant cannot

be taken on file as earlier CRP order made

2026:MNHC:178-DB

Page 27 of 29

by the predecessor Hon’ble Chief Justice on

18.07.2019 (CRP No. 39 of 2019) has

attained finality and has been given legal

quietus.

(x) In the captioned MC, there is an averment

to the effect that the grounds raised in the

RFA shall be treated as grounds in

captioned MC also. The question of

examining grounds raised in RFA will arise

only when the delay is condoned, RFA is

numbered and taken up for hearing.

However, this Court notices that as many

as 15 (fifteen) grounds have been raised in

the RFA. A careful perusal of the 15(fifteen)

grounds brings to light that defendant has

neither pleaded denial of execution of DPN

nor pleaded discharge. A faint attempt has

been made vide grounds (iii) and (v) to say

that said Trial Court in the judgment dated

05.08.2019 (impugned decree) has not

examined whether the transaction has

been proved. In effect, as the defendant

has neither pleaded denial of execution of

2026:MNHC:178-DB

Page 28 of 29

DPN nor pleaded discharge and in the

absence of written statement, we find that

an RFA under Section 96 CPC at advanced

stage of execution (post attachment) with

MC for condonation of 1662 days delay is

an untenable effort on the part of the

defendant.

(xi) Reverting to the reasons for delay, as

already alluded to supra, the burden of the

song of the defendant/MC applicant is

difficulty/certain deficiencies qua erstwhile

counsel in Trial Court and change of

counsel and that the defendant could not

effectively instruct the counsel. This, in the

considered view of this Court, in the facts

and circumstance of instant case, is a non-

starter. It is hardly sufficient cause within

the meaning of Section 5 of the Limitation

Act that too for condoning 1662 days delay

qua a RFA which has been filed more than

4 years and 2 months after elapsing of

exclusion of Covid-19 period but claiming

exclusion.

2026:MNHC:178-DB

Page 29 of 29

(xii) This Court should also take into account the

fact that a right crystalises in favour of the

decree holder and this is a case where a

right crystalised in favour of the decree

holder more than 7 years ago i.e. on

05.08.2019 and the judgement debtor

admittedly was aware of the decree at least

on 19.08.2019 when the judgment debtor

made application for certified copies of the

judgment and decree. This is more so as

decree holder has launched execution and

obtained an order of attachment qua

immovable property. To be noted, RFA has

been filed after this attachment order.

[9] Ergo, the sequitur of the narration, discussion and

dispositive reasoning thus far is, captioned MC is bereft of merits and it

deserves to be dismissed. Captioned MC is dismissed. This Court

imposes self-restraint on itself and refrains from imposing costs.

JUDGE CHIEF JUSTICE

FR/NFR

Sushil/Bipin

P.S. I : Upload forthwith

P.S. II : All concerned will stand bound by instant order vide web

copy uploaded in High Court website inter -alia as the

same is QR coded.