2010 (6) TMI 660 - SUPREME COURT

Condonation of delay - plea for setting aside the sale through auction - Held that:- The delay in filing the first appeal before District Judge, Ludhiana, for setting aside the sale has not been so huge warranting its dismissal on such hypertechnical ground. In fact, appellant had taken all possible steps to prosecute the matter within time. Had there been an intimation sent to the appellant by its erstwhile Advocate, and if even thereafter appellant had acted callously then the negligent attitude of the appellant would have been understood but that was not the case here.

While considering the application for condonation of delay no straight jacket formula is prescribed to come to the conclusion if sufficient and good grounds have been made out or not. Each case has to be weighed from its facts and the circumstances in which the party acts and behaves. From the conduct behaviour and attitude of the appellant it cannot be said that it had been absolutely callous and negligent in prosecuting the matter.

After all, justice can be done only when the matter is fought on merits and in accordance with law rather than to dispose it of on such technicalities and that too at the threshold. Both sides had tried to argue the matter on merits but we refrain ourselves from touching the merits of the matter as that can best be done by the Executing Court which had denied an opportunity to the appellant to lead evidence and to prove the issues so formulated - ends of justice would be met by setting aside the impugned orders and matter is remitted to the Executing Court to consider and dispose of appellant's objections filed under Order 21 Rule 90 of CPC on merits and in accordance with law as appellant would not have gained in any manner whatsoever, by not filing the appeal within the period of limitation.