AMITAVA LALA, J. ( 1 ) THIS is an application basically under Order 9 Rule 13 of the Code of Civil Procedure along with various other reliefs. This application has been made by the pen of Personnel Manager (East) and constituted attorney of the company on 5th September, 2000 for the purpose of recalling the decree dated 12th January, 2000 in C. S. No. 430 of 1999 (Gopal Lukharia v. Praxair India Limited ). In the instant application the defendant/petitioner also prayed for various reliefs in connection with the execution application arising out of decree being G. A. No. 1859 of 2000. ( 2 ) IT is pertinent to mention here that the application was admittedly made out of time prescribed under Article 123 of the Limitation Act, 1963. Article 123 of the Limitation Act says that a period of thirty days is fixed for such application which will be counted from the date of the decree or where the writ summons or notice was not duly served when the applicant have knowledge of the decree. It appears that both the parts are distinctive from each other. From the facts narrated by the defendants/petitioner it appear not only the writ of summons was served but the defendant/petitioner company entered into appearance through their respective solicitors/advocates firm on 5th October, 1999. Therefore, under no stretch of imagination it can be construed that writ of summons or notice was not served upon the defendant so that they can apply for recalling or setting aside the decree on the date of their knowledge of the decree. Thus, it is crystal clear that thirty days period is specific for such application from the date of the decree which already expired. ( 3 ) HOWEVER, following the Original Side Rules prayer for condonation of delay is made in the instant application instead of making it separately unlike the procedure available elsewhere. Therefore, Court is duty bound to hear out the explanation for condonation of delay. Section 5 of the Limitation Act, 1963 says that an application may be admitted after the prescribed period if the Court is satisfied that there is sufficient cause for not making the application within such period. Therefore, such expression will definitely come out from the averments made in the petition. Section 5 of the Limitation Act, 1963 says that an application may be admitted after the prescribed period if the Court is satisfied that there is sufficient cause for not making the application within such period. Therefore, such expression will definitely come out from the averments made in the petition. I find from the paragraph 10 of the petition that the petitioner entered into appearance on 5th October, 1999 but no step was taken from then till 15th November, 1999 due to the Puja vacation admittedly. The petitioner contacted with the advocates on record and the advocates on record advised to supply him necessary papers, documents for the purpose of preparation of written statement. It is further contended that some of the papers and documents were supplied in second week of November, 1999 but upon going through the same it was advised to produce further documents to make a complete defence. Certain other explanations are given for collection of papers from different places and also conversion of the company from the nature of the private limited to the nature of the public limited etc. as well as replacement of Vice President (Finance) in January, 2000. According to me, the explanation as yet given is self-contradictory in nature since in one hand the petitioner has stated that he has contacted with the advocates on record after opening of the Court on 15th November, 1999 but on the other hand, he has stated that the certain papers and documents relating to the case was made available to the advocates on record in the second week of November, 1999. I fail to appreciate as to why no step has been taken till such time by the petitioner, being a company controlled by the persons having legal knowledge and backed by the well-equipped solicitors/advocates firm by taking out any application for extension of time to file written statement of that score. It is immaterial for the Court to give any concession at this belated stage to consider all the explanations for having relevant documents for the purpose of taking defence or not. These are, at best, can be the explanations in an application before the Court of Law for the purpose of getting time to file the written statement. It is immaterial for the Court to give any concession at this belated stage to consider all the explanations for having relevant documents for the purpose of taking defence or not. These are, at best, can be the explanations in an application before the Court of Law for the purpose of getting time to file the written statement. Therefore, such explanations in addition to the contradictory statement as given above cannot be a cogent ground for the purpose of recalling or setting aside the exparte decree by condoning the delay. ( 4 ) THE second phase of explanation is that in the first week of January, 2000 representative of the petitioner contacted with the advocates on record who, in turn, advised to make a formal application for extension of time to file written statement and thereafter no explanation has been given as to why such application has not been made. The only explanation is that when a receiver proceeded to comply with the order of execution on first of September, 2000 they came to know that was an order to that extent on 9th May, 2000 on the basis of a decree passed by this Court on 12th January, 2000. Therefore, there are laches not only on the part of the advocates on record which is a well equipped solicitors/advocates firm but also the petitioner which is a company running the show with the help of educated persons including persons having legal knowledge. It is unbelievable that inspite of filing vakalatnama such company or such type of solicitors/advocates firm will remain silent spectator in respect of the pending litigation and make conversation in between themselves for bringing records, files and documents to draft a written statement instead of taking out an application for extension of time to file written statement at first. ( 5 ) THE explanation for the delay as given hereinabove is basically not in respect of taking out an application belatedly from the date of passing the decree but in respect of taking out an application for defending the suit before passing the decree. Therefore, explanation cannot find any place whatsoever in making this application for condonation of delay for the purpose of recalling and/or setting aside the decree. According to me, there is a purpose of giving such explanation. Therefore, explanation cannot find any place whatsoever in making this application for condonation of delay for the purpose of recalling and/or setting aside the decree. According to me, there is a purpose of giving such explanation. Such purpose is that when representative of the defendant/petitioner was about to make himself ready to take the defence by way of application etc. the decree has been passed which ought not to have been so passed. Therefore, the question will remain as to why such point will be allowed to be agitated? Whether the decree at such stage can be construed as an exparte decree? According to this Court, a decree passed under the heading of an 'undefended Suit' cannot be construed as a decree exparte. The principle of the word 'exparte' is governed by the circumstances when one was prevented by a sufficient cause. But when one did not choose to contest the suit in the eye of law and when the suit was placed under the heading 'undefended Suit' and the decree was passed such decree cannot be construed as decree exparte. The very principle of prevention by sufficient cause is unavailable in the circumstances as above. When the entire gamut is ruled by the principle of audi altrem partem and once such condition is fulfilled by one of the parties, onus is shifted to other whether they will participate in the proceeding or not. Once the party having knowledge did not choose to appear and defend the suit element of prevention by sufficient cause on the date and time of happening cannot be available, onus cannot be said to be discharged. Hence the decree passed in an 'undefended Suit' cannot be construed as a decree exparte. Self prevention cannot be equated with prevention by sufficient cause. Moreover, conditions of non-service of writ of summons or notice cannot also be available here so that delay can be condoned. It is to be remembered that condonation of delay in admitting the application as well as allowing the application of order of the Code of Civil Procedure is totally discretionary in nature depending upon the fact situation of each and every case. Discretionary power of the Court should be used sparingly, otherwise there would be anarchy control over the judicial functions and Court will be flooded when such litigations for their own action of wide application of discretion. ( 6 ) MR. Discretionary power of the Court should be used sparingly, otherwise there would be anarchy control over the judicial functions and Court will be flooded when such litigations for their own action of wide application of discretion. ( 6 ) MR. Ajoy Krishna Chatterjee, learned senior counsel appearing for the petitioner with the able assistance of Mr. Soumen Sen cited several judgments to convince the Court affirmatively in their favour. Therefore, a discussion is required to be made in respect of such judgments. ( 7 ) FIRSTLY, they have cited a Division Bench judgment reported in 1998 (1) CLJ 22 (Pratima Mondal v. Dharidnar Mondal ). Factual matrix is that in a matrimonial suit when an application under section 24 of the Code of Civil Procedure for transfer or withdrawal of the suit was pending, the same was disposed of and an application as made under Order 9 Rule 13 of the Code of Civil Procedure was also dismissed. When an appeal was preferred with an application for condonation of delay of one ninety seven days Court allowed such application. Two points arose whether the appeal can be preferred from such order and whether delay can be condoned. The second point is relevant for the purpose. The Division Bench held that there was a ground of illness which has not been formally denied or controverted. Therefore, the same is the sufficient ground for condonation. In future observed day to day explanations are not required but the substantial explanation will be good enough. So far as such ratio is concerned as I find from the Division Bench judgment that the same was made available on the sufficient explanation as to the fact. Therefore, by citing the aforesaid judgment the petitioner, at best, can establish that condonation of delay can be made available even on the grounds other than non-service of notice or writ of summons but cannot establish that the relief obtained on the factual matrix available therein can also be available here to draw a conclusion. Negligence cannot be equated with prevention. ( 8 ) SIMILARLY, he has cited a Supreme Court judgment reported in 1998 (7) SCC 123 (N. Balakrishnan v. M. Krishnamurthy ). The plinth of the judgment is unique one. Negligence cannot be equated with prevention. ( 8 ) SIMILARLY, he has cited a Supreme Court judgment reported in 1998 (7) SCC 123 (N. Balakrishnan v. M. Krishnamurthy ). The plinth of the judgment is unique one. Condonation of delay was allowed by the Court upon observing that due to laches on the part of the advocates of the petitioner therein he has filed an application before the appropriate District Consumer Disputes Redressal Forum on account of compensation for not discharging duty. Moreover, there the petitioner engaged an advocate for making an application for setting aside an exparte decree but the advocate failed to inform that the application was dismissed for default which he came to know after summons of the Court of the execution was being served. Under such circumstances, Court held that the petitioner's conduct therein does not on the whole warrant to castigate him as an irresponsible litigant. That apart in discussing the matter the Supreme Court held that section 5 of the Limitation Act does not say that the discretion can be exercised only if the delay is within a certain limit. The length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes, delay of the shortest range may be uncondonable due to want of an acceptable explanation whereas in certain other cases delay of a very long range can be condoned as the explanation thereto is satisfactory. If the explanation does not smack of malafide or it is not put forth as part of the dilatory strategy the Court must show utmost consideration to the suit. But when there is reasonable ground to them that the delay was occasioned by the party deliberately to gain time then the Court should lean against acceptance of the explanation. The present case factually fit to refuse the condonation because ploy to gain time is apparent. ( 9 ) THE reference as shown under 1998 (8) SCC 562 (Union of India and Ors. v. A Vasu) has no relevance in respect of the present case. ( 10 ) THE learned counsel further cited AIR 1987 SC 1353 (Collector, Land Acquisition, Anantnag and Anr. v. Mst. Katiji and Ors.) to come to an appropriate conclusion in respect of sufficient cause. v. A Vasu) has no relevance in respect of the present case. ( 10 ) THE learned counsel further cited AIR 1987 SC 1353 (Collector, Land Acquisition, Anantnag and Anr. v. Mst. Katiji and Ors.) to come to an appropriate conclusion in respect of sufficient cause. More and more guidelines are given there but again it has been discarded when the delay is occasioned deliberately or on account of culpable negligence or on account of mala fidies. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk. ( 11 ) A further judgment has referred by the learned counsel appearing for the petitioner as reported in 2000 (3) SCC 54 (G. P. Srivastava v. R. K. Raizada and Ors. ). This is related to the merit of the case but I have dealt with the same in merit as well as in explanation of delay so that the Court can liberally construe the circumstances for the purpose of coming to a conclusion if the same is otherwise available. But I find that the two parts of the judgment in its paragraph 7 which has been projected by the learned counsel are going totally against the petitioner. Such part says that unless 'sufficient cause' is shown for non-appearance of the defendant on the date of hearing, the Court has no power to set aside an exparte decree. The 'sufficient cause' for non-appearance on the date on which the absence was made a ground for proceeding ex parte cannot be stretched to rely upon other circumstances anterior in time. Even if this Court want to proceed by taking peoantic measure it will be available that the plea of absence on the date and time of passing decree was taken on the medical ground which was not disputed by the respondent therein. Therefore, the present case is not same or similar with the same. ( 12 ) A further decision has been cited as reported in AIR 1986 Cal 76 (Ranipet Chemicals and Engineering Company Private Limited v. Swastik Stainless Steel Stores) where a Division Bench of this Court has taken a view that a company is a ley client should not be made to suffer for negligence and in connection on the part of the lawyer. Moreover, the name of the advocate was not appearing on the daily cause list so that even the advocate would have come to know the matter was directed to be taken up on the date of time when it was called on and disposed of finally. However, again to show sympathy this Court called upon the respondent/plaintiff to give answer. ( 13 ) THE respondent vehemently opposed this application. He has given the follow grounds for refusal: (a)the application is barred by law of limitation; (b)the suit appeared in the warning list on 7th December, 1999. Thereafter appeared as 'undefended Suit' in the list of the Court on many occasions i. e. On 8th December, 1999, on 15th December, 1999, on 22th December, 1999, on 5th January, 2000, on 10th January, 2000, on 11th January, 2000, on 12th January, 2000, decree passed. (c)due to lack of diligence the application ought to be dismissed. The grounds for delay is neither sufficient nor cogent and ex facie fictitious and/or tailored. Certain other dates are given to substantiate even the factual statements as made by the petitioners are incorrect in nature. (d)the explanation as to the conversion of the company from the nature of private limited to the nature of public limited was caused on 30th June, 1999 even before the institution of the suit. ( 14 ) THE vivid list of dates have been made as a part of the affidavit-in-opposition from which it is apparent that how careless and/or negligent the defendant/petitioner was in attending the Court at any point of time or in taking steps whatsoever by way of filing written statement or taking time for filing written statement or making themselves present at the time of the second call on the fateful day when the decree was passed. Even the statement has been made in such affidavit-in-opposition that the defendant/respondent being a judgment debtor wanted to settle the matter on the basis of assurance of such settlement enough time has been obtained from the Court not to given effect of order of execution under this application. It appears that at a point of time Court was pleased to test the bonafide of the defendant/petitioner and pleased to direct to deposit part of the amount by cash and part as bank guarantee which was given and negotiation of settlement was going on before the Court. It appears that at a point of time Court was pleased to test the bonafide of the defendant/petitioner and pleased to direct to deposit part of the amount by cash and part as bank guarantee which was given and negotiation of settlement was going on before the Court. The only dispute was in respect of the quantum. But the petitioner, cannot to take advantage of such situation as a defence of setting aside or recalling a decree. ( 15 ) ACCORDING to me an endeavour of the Court to settle a dispute on some pretext or other is a discretion unconnected with the issue. However, some time some events are creating cloud in the mind of the Court. The present one is like the same. Here whole intention of the petitioner to compromise the suit by recalling and/or setting aside the decree as per their terms. The only silver line was the temperament of the petitioner in depositing the decretal sum in an account. Of course that has been done upon consistent endeavour of the Court when an order of execution was hanging on their head and this Court approached belatedly. Court thought it fit in comparison of laches on the part of the petitioner. ( 16 ) MR. Asoke Kr. Banerjee, learned senior counsel with an able assistance of Mr. Shyamal Sarkar, learned advocate cited a Division Bench judgment reported in AIR 1994 Patna 103 (Firoz Khan and Ors. v. Bibi Hasina Khanam and Ors.) and by showing paragraph 7 contended that delay was one of the grounds not to set aside the exparte decree. However, there was delay about twenty two years. In any event one ground is clear and consistent either before the Supreme Court or before the High Court that Court used to be liberal but the same is subject to consideration of cause of guilty or negligence or carelessness. ( 17 ) HE further cited a judgment reported in 1993 (2) SCC 185 (Salil Dutta v. T. M. and M. C. Private Limited) which is well reputed judgment by this time. There, the question of setting aside the decree under Order 9 Rule 13 was refused taking the measure that a rustic ignorant villager cannot be equated with a public limited company with its Head Office in Calcutta itself and managed by educated businessman who knew where their interests lies. There, the question of setting aside the decree under Order 9 Rule 13 was refused taking the measure that a rustic ignorant villager cannot be equated with a public limited company with its Head Office in Calcutta itself and managed by educated businessman who knew where their interests lies. When it appeared that such litigant choose to non-cooperate with the Court, Supreme Court held that such litigant has no right to ask its indulgence. Putting the entire blame of the advocate and trying to make it out as if they were totally unaware of the nature of significance of the proceedings is a theory which cannot be accepted and ought not to have been accepted. By delivering this judgment the Supreme Court distinguished the ratio of the famous judgment of the Rafiq's case reported in (1981)2 SCC 788 =air1981 SC 1400. This judgment was accepted not only by the Division Bench of this Court in 99 Calwn 789 (Salimar Paints Limited v. Smt. Asoka Deb and Anr.) but also by this Court on numerous occasions. ( 18 ) HE has also cited a judgment reported in 1995 (6) SCC 148 (Vijaykumar Durgaprasad Gajbi and Ors. v. Kamlabai and Ors.) to show that when there was no bona fide reason or genuineness for non-appearance and an element of prolonging the matter is available the application under Order 9 Rule 13 of the Code of Civil Procedure is likely to be dismissed. ( 19 ) I have carefully considered the submissions made by both the parties relying upon the decisions. It is much easier to grant an order of condonation of delay and recall or set aside the decree passed by the Court but it is much more difficult to refuse such order. Every aspect of a matter is dependable upon the test of bonafide and balance of convenience as I have already discussed. The petitioner made various contradictory statements which are taken more by the respondent/plaintiff. Inspite of entering appearance through the respective advocates as to why no written statement has been filed nor any step taken for extension of time is unknown to this Court. A bare statement of non-supply of documents have been made to which not only the advocates but also the litigants are equally responsible. Inspite of entering appearance through the respective advocates as to why no written statement has been filed nor any step taken for extension of time is unknown to this Court. A bare statement of non-supply of documents have been made to which not only the advocates but also the litigants are equally responsible. It would have been altogether different stand point if the defendant having found no other alternative made the application for extension of time to file written statement and inspite of pendency of such application, the Court proceeded against it by passing a decree. That is not so. This is a case of leisered thinkers about getting extension of time to file written statement as a matter of course. No indulgence can be given to such litigant company who is admittedly party to the same. Moreover, Court is concerned about prevention by sufficient cause at the appropriate date and time. At the date and time there was no scope for the petitioner to appear since it had not filed any written statement. Therefore, the company is a defaulting party. Hence non-appearance of the name in the list cannot be regarded as a good ground at all as and when certificate has been issued by the Registrar, Original Side of the Court to place the suit under the heading of 'undefendant Suits' for not entering into appearance or for non-filing of the written statement. When the matter is placed under the heading of 'undefended Suit' then there is no scope of appearance of the name of the defaulting party's advocate. It is a matter of scrutiny by the department. Suits are to be scrutinised by the department and placed under the prospective list. Then again there are to be scrutinised and be placed under the warning list. Then again those are to be scrutinised and be placed under the premptory list of the Court. It also appears that even on that stage the suit appeared in the list on numerous occasions. It is unacceptable explanation that the advocates on record did not follow the cause list due to not having their names in the list. There is no question of appearance of their names. In the instant case, the petitioner was not present on the date and time when in the second call the suit was heard and disposed of as an 'undefended Suit'. There is no question of appearance of their names. In the instant case, the petitioner was not present on the date and time when in the second call the suit was heard and disposed of as an 'undefended Suit'. Such ground is not a ground sufficient for the purpose of recalling or setting aside the decree passed in an 'undefended Suit' unlike an ex-parte decree available under a given situation. That apart, incidents before or after the date and time of passing decree is extraneous for consideration and has no bearing with the sufficient cause under Order 9 Rule 13 of Code of Civil Procedure. Hence the application cannot be sustainable in law. ( 20 ) THEREFORE, the same is dismissed. Interim order, if any, stands vacated. No order is passed as to costs. However this order will not prevent the judgment debtor to take the defence relating to the execution, discharge and satisfaction of the decree by the Court of Execution under section 47 of the Code of Civil Procedure and in such case Court of Execution will be entitled to proceed independently in respect of the same. Xeroxed certified copies of this judgment will be supplied to the parties within seven days from the date of putting requisites for drawing up and completion of the order and certified copy of this judgment. All parties are to act on a signed copy minutes of the operative part of this judgment on the usual undertaking and subject to satisfaction of the Officer of the Court in respect as above. Petition dismissed.