Facts of the Case

Dharam Developers and Finvest Limited filed a suit in 2017 seeking specific performance of an agreement to sell and a perpetual injunction concerning 0.169 hectare of land in Indore district. The defendant, Deepak Afle, claimed ownership under a registered sale deed dated 10 July 2006. The plaintiff alleged a subsequent agreement to sell dated 24 April 2012, involving part consideration of ₹10 lakh.

Following unsuccessful service of summons, substituted service through newspaper publication was permitted. The proceedings continued ex parte on 24 August 2017, and a decree was passed on 8 August 2019.

Afle stated that he learned of the decree during execution proceedings in November 2019 but his lawyer failed to advise him to seek its setting aside. His application under Order IX Rule 13 CPC was rejected by the trial court on 13 April 2024, and the District Court upheld the rejection on 28 February 2025.

High Court’s Ruling

On 8 October 2026, the High Court partly allowed the civil revision, condoning the 1,093-day delay subject to payment of ₹50,000 in costs to the plaintiff.

Relying on N. Balakrishnan v. M. Krishnamurthy, (1998) 7 SCC 123, the Court reiterated that the length of delay is not decisive; the acceptability of the explanation is paramount. A litigant should not necessarily suffer due to a lawyer’s failure.

Under Section 5 of the Limitation Act, 1963, delay may be condoned upon sufficient cause. Article 123 generally prescribes 30 days to apply to set aside an ex parte decree, subject to the rule governing cases where summons were not duly served.

Operative Order and Legal Significance

The High Court set aside the lower courts’ orders rejecting the delay application and remanded the matter to the trial court to decide the Order IX Rule 13 CPC application afresh, in accordance with law.

Importantly, the High Court did not set aside the ex parte decree itself. The defendant must still establish a statutory ground under Order IX Rule 13 CPC, such as non-service of summons or sufficient cause for non-appearance.

Legal principle: Condonation of delay removes the limitation barrier but does not establish entitlement to set aside an ex parte decree. Costs may be imposed to balance procedural fairness with prejudice to the opposing party.