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2007 DIGILAW 944 (MAD)

G. Amsaveni & Others v. P. Kanakaraj

2007-03-15

R.BANUMATHI

body2007
Judgment :- Challenge in this Revision is to the Order of dismissal of the application filed under Sec.5 of the Limitation Act, declining to condone the delay of 276 days in filing the application to set aside the exparte Decree. 2. Whether delay was due to negligence or want of bonafide on the part of the Petitioners and whether the impugned Order declining to condone the delay of 276 days is sustainable, are the points arising for consideration in this Revision Petition. 3. Before we deal with the contentions and number of case laws cited, we may refer to brief facts, which are as follows:- 3. 1. Respondent/Plaintiff filed O.S.No.1484/2000 before the Sub Court, Coimbatore against one Gopalan [since deceased] for the relief of Specific Performance, directing him to execute Sale Deed in Plaintiffs favour on the basis of a registered Sale Agreement dated 011. 1997 and for consequential relief of recovery of possession. Pending suit, sole Defendant died on 23.02.2001, leaving behind him his wife, son and daughter, who are the Petitioners herein. Petitioners were brought on record in the suit as Defendants 2 to 4. Suit was adjourned to various dates for filing Written Statement and finally, the suit was decreed exparte on 23.04.2003 for non-filing of Written Statement. 3. 2. Balance sale consideration of Rs.25,000/-was deposited on 03.06.2003. Respondent/Plaintiff filed E.P.No. 401/2003 for execution of the Sale Deed. Petitioners were set exparte in the execution proceedings on 02.02.2005. Court has ordered execution of the Sale Deed in Plaintiffs favour and Plaintiff has also deposited Non-Judicial Stamp papers and the Sale Deed was executed by the Court on 20.07.2005. 3. 3. Respondent/Plaintiff has filed E.P.No.301/2005 for delivery of possession and Court has issued Warrant for delivery of possession. Decree-Holder has also filed applications to break open shops and for effecting delivery of the property and also for police protection. Petitioners have filed applications to recall delivery of warrant ordered. 3. 4. Petitioners have filed I.A.No.160/2004 under Sec.5 of the Limitation Act to condone the delay of 276 days in filing application to set aside the exparte Decree. Application was filed in April, 2004, the same was adjourned to 08.06.2004. Thereafter, application was not traceable for quite some time. C.R.P.No.1505/2006 was disposed of by this Court with a direction to the trial Court to dispose of I.A.No.160/2004, within a period of six weeks. Application was filed in April, 2004, the same was adjourned to 08.06.2004. Thereafter, application was not traceable for quite some time. C.R.P.No.1505/2006 was disposed of by this Court with a direction to the trial Court to dispose of I.A.No.160/2004, within a period of six weeks. Lower Court dismissed the application I.A.No.160/2004 finding that the Defendants did not take prompt efforts to set aside the Decree. Finding that no sufficient cause was shown for delay, Court has declined to condone the delay. Placing reliance upon 2006(4) TNLJ 299, Court has held that over the years, several proceedings have been ordered and the same cannot be reopened, causing prejudice to the Decree-Holder. 4. Challenging the impugned Order, the learned Counsel for the Petitioner Mr. R. Thiagarajan has made forcible presentation submitting that in construing the expression "sufficient cause", Courts are to adopt liberal approach and that approach must be justice oriented. Taking me through records, learned Counsel has submitted that application I.A.No.160/2004 was not traceable for more than two years and the act of the Court cannot be allowed to cause prejudice to the party. It was further submitted that Petitioners have sufficient cause since the head of the family Gopal had passed away and thereafter, the counsel engaged by him had also passed away. It was submitted that even if Sale Deed was executed in favour of Plaintiff, it could be contested in terms of money and unless an opportunity is given to the Petitioners, Petitioners would be subjected to great hardship. In support of his contention that Courts are to take liberal approach, learned Counsel placed reliance upon the following decisions – 1998(II)CTC 533 – N. Balakrishnan Vs. M. Krishnamurthy; 1999(I)CTC 238 – Shriram Chits and Investments (P) Ltd., Vs. M. Krishnan and others; 2000 (III) CTC 727 – C. Subramaniam Vs. Tamil Nadu Housing Board rep. By its Chairman; 2001(6)SCC 176 – M.K. Prasad Vs. P. Arumugam; 2005(3) TLNJ 544 [Civil] – Sudalaiyandi Thevar Vs. Gomathinayagam Pillai and another; 2005(3)SCC 752 – State of Nagaland Vs. Lipok Ao and others; 2007(II) CTC 58 – The Secretary, Madras Race Club, Chennai Vs. Saraswathy Kailasam. 5.Contending that no satisfactory explanation is forthcoming for not pursuing the matter, the learned Counsel for the Respondent/Plaintiff has submitted that the Petitioners were all along participating in the proceedings and there is no sufficient cause shown for the delay. Lipok Ao and others; 2007(II) CTC 58 – The Secretary, Madras Race Club, Chennai Vs. Saraswathy Kailasam. 5.Contending that no satisfactory explanation is forthcoming for not pursuing the matter, the learned Counsel for the Respondent/Plaintiff has submitted that the Petitioners were all along participating in the proceedings and there is no sufficient cause shown for the delay. It was further submitted that the averments in the affidavit are bereft of particulars and 3rd Petitioner has given contradictory version about his address. It was further submitted that various proceedings having been ordered, the same cannot be ordered to be reopened at the instance of Petitioners who had all along been participating in the proceedings. The learned Counsel has placed reliance upon the following decisions - 2005(4)CTC 489 SC – Popat and Kotecha Property Vs.State bank of India Staff Association; 2005(11) SCC 197 – State of Rajasthan Vs.Nav Bharat Construction Co; 2003(1)LW 585 – 1993(1)SCC 572 – Binod Bihari Singh Vs. Union of India; 2003(1)LW 585 – Sundar Gnanaolivu rep. By Power of Attorney Agent Vs. Rajendran Gnanavolivy rep. By its Power of Attorney Agent; 2006(5) CTC 822 – Kaliammal and others Vs. Sundarammal and another; 2001(3)CTC 321 – Reliance Industries Ltd., rep. By Reliance Consultancy Services Vs. M. Rajkumari; 2001(4)CTC 722 – Kandaswamy and 4 others Vs. Krishnamandiram Trust by its Trustees; 2004 (3) MLJ 36 – Rathinathammal Vs. Muthusamy and others; 2003(3)MLJ 709 – Ramlal and others Vs. Rewa Coalfields Ltd. 6. In the facts and circumstances of the case, when the party aggrieved were not diligent in pursuing the matter and no plausible explanation is forthcoming and the averments are lacking in bonafides, Courts have declined to condone the delay. As stated earlier, what is, or what is not a sufficient cause depends upon varied facts and circumstances of each case. Each case has to be dealt with particular facts and circumstances of that case. When no negligence or lack of bonafide is attributable to the Petitioners to advance substantial justice, an opportunity should be afforded to the Petitioners to contest the suit and the delay has to be condoned. 7. Placing reliance upon 2000(5) CTC 822 [Kaliammal and others Vs.Sundharammal and another], it was contended that condoning delay at this stage would unsettle various proceedings. 7. Placing reliance upon 2000(5) CTC 822 [Kaliammal and others Vs.Sundharammal and another], it was contended that condoning delay at this stage would unsettle various proceedings. Sec.5 gives the Court a discretion in respect of jurisdiction to exercise jurisdiction so as to advance substantial justice when no negligence nor inaction nor want of bonafides is imputable to the applicant. 8. Again in N. Balakrishnan Vs. M. Krishnamurthy (1990-1-LW 739) the Honble Supreme Court held that acceptability of explanation for the delay is the sole criterion and length of delay is not relevant, in the absence of anything showing malafide or deliberate delay as a dilatory tactic, the Court should normally condone the delay. However, in such a case the Court should also keep in mind the constant litigation expenses incurred or to be incurred by the opposite party and should compensate him accordingly. In that context the Court observed : "10. It is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be condonable due to want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the Court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior Court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first Court refuses to condone the delay. In such cases, the superior Court would be free to consider the cause shown for the delay afresh and it is open to such superior Court to come to its own finding even untrammelled by the conclusion of the lower Court. .... 13. A Court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the Court is always deliberate. This Court has held the words "sufficient cause". .... 13. A Court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the Court is always deliberate. This Court has held the words "sufficient cause". Under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain V. Kuntal Kumari, AIR 1969 SC 575 and State of West Bengal Vs. The Administrator Howrah Municipality, AIR 1972 SC 749 . 14. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of malafides or it is not put-forth as part of a dilatory strategy the Court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the Court should lean against acceptance of the explanation. While condoning delay, the Court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite a large litigation expenses. It would be a salutary guideline that when Courts condone the delay due to laches on the part of the applicant the Court shall compensate the opposite party of his loss". 9. It must be borne in mind that he is a loser and he too would have incurred quite a large litigation expenses. It would be a salutary guideline that when Courts condone the delay due to laches on the part of the applicant the Court shall compensate the opposite party of his loss". 9. Following Balakrishnans case and referring to various other decisions, in 2000(3) CTC 727 , Division Bench of this Court has laid down the following guidelines in considering applications filed under Sec.5 of the Limitation Act, seeking condonation of delay - "To turn up the legal position – (1) the word "sufficient cause" should receive liberal construction to do substantial justice; (2)what is "sufficient cause" is a question of fact in a given circumstances of the case; (3)it is axiomatic that condonation of delay is discretion of the Court; (4)length of delay is no matter, but acceptability of the explanation is the only criterion; (5)once the Court accepts the explanation as "sufficient", it is the result of positive exercise of discretion and normally the superior Court should not disturb in such finding unless the discretion was exercised on wholly untenable or perverse; (6)The rules of limitation are not meant to destroy the rights of the parties but they are meant to see that the parties do not resort to dilatory tactics to seek their remedy promptly. (7)Unless a party shows that he/she is put to manifest injustice or hardship, the discretion exercised by the lower Court is not liable to be revised. (8)If the explanation does not smack of malafides or it is put forth as part of a dilatory strategy the Court must show utmost consideration to the suitor. (9)If the delay was occasioned by party deliberately to gain time, then the Court should lean against acceptance of the explanation and while condoning the delay, the Court should not forget the opposite party altogether. 10. Elaborately dealing with the subject and holding that proof of sufficient cause is condition precedent for exercising extraordinary discretion vested in the Court and what counts is not the length of delay, but sufficiency of the cause and observing that what constituted sufficient cause cannot be laid down by hard and fast rules, in 2005(3) SCC 752 [State of Nagaland Vs. Lipok Ao & others], Supreme Court has held as follows :- 12. In O.P. Kathapalia Vs. Lipok Ao & others], Supreme Court has held as follows :- 12. In O.P. Kathapalia Vs. Lakhmir Singh [ 1984 (4) SCC 66 ] a Bench of three Judges had held that if the refusal to condone the delay results in grave miscarriage of justice, it would be a ground to condone the delay. Delay was accordingly condoned. In Collector, Land Acquisition Vs. Katiji [ 1987 (2) SCC 107 ] a Bench of two Judges considered the question of limitation in an appeal filed by the State and held that Section 5 was enacted in Order to enable the Court to do substantial justice to the parties by disposing of the matters on merit. The expression sufficient cause is adequately elastic to enable the Court to apply the law in a meaningful manner which subserves the ends of justice – that being the life purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. This Court reiterated that the expression "every days delay must be explained" does not mean that a pedantic approach should be made. The doctrine must be applied in a rational, common-sense, pragmatic manner. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. Judiciary is not respect on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the State which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. The fact that it was the State which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a step-motherly treatment when the State is the applicant. The delay was accordingly condoned". 11. It is settled law that Sec.5 application is to be construed liberally so as to do substantial justice to the parties. The provision contemplates that the Court has to go into the position of the person concerned and find out if the delay can be said to have been resulted from the cause which the Petitioner had adduced and whether the cause stated in the circumstances of the case is sufficient. It is the condition precedent for the exercise of discretion that the Court must satisfy itself as to whether there was sufficient cause for exercising such discretion and condoning the delay. The expression sufficient cause should be considered with pragmatism with a justice oriented approach. 12. Court has to see whether sufficient cause is shown for the delay. What is or what is not sufficient cause would depend upon varied and special circumstances of each case. To decide whether sufficient cause is shown or not, it is very undesirable to act upon precedents as every Judge has to deal with particular facts of each case. In State of Kerala Vs. E.K. Kuriyipe [1981 Supp SCC 72], it was held that whether or not there is sufficient cause for condonation of delay is a question of fact dependent upon the facts and circumstances of the particular case. 13. In the present case, Petitioners have tried to explain the delay in filing the Petition. Stating that after death of Gopalan they were impleaded as parties and that due to family reasons they shifted their residence from the address given in the plaint to D.No.26-B, Cheranma Nagar, Vilamkurichi, Coimbatore and that they did not receive notice. Petitioners have also stated that communication sent by their counsel was not received by them and hence, they could not file Written Statement and subsequently, they came to know that their previous counsel had also died and thereafter, they engaged the present counsel and filed application to set aside the exparte Decree passed on 23.04.2003. Petitioners have also stated that communication sent by their counsel was not received by them and hence, they could not file Written Statement and subsequently, they came to know that their previous counsel had also died and thereafter, they engaged the present counsel and filed application to set aside the exparte Decree passed on 23.04.2003. On this explanation the Court below observed that the Petitioners were aware of the proceedings and they have not taken steps to set aside the exparte Decree and waited for years till delivery of possession was ordered. Court below has not adverted to various reasons stated by the Petitioners for the delay. 14. Petitioners conduct on the whole does not warrant to castigate them as irresponsible litigants or no negligence or malafide could be attributed to them. Suit was filed in the year September, 2000. D-1 - Gopal died on 23.02.2001. Petitioners were brought on record as Legal Representatives as per Order in I.A.No.365/2002. Exparte Decree was passed on 23.04.2003. 15. Loss of head of the family is quite a serious matter which might have taken some time for the Petitioners to take stock of the situation and contact their counsel. Unfortunately the counsel engaged by Petitioners also passed away. Quite naturally, the Petitioners could not have contacted their counsel to take steps in filing the application. 16. In the supporting affidavit, third Petitioner has stated that he has shifted his residence and did not inform the counsel about the change of address and hence the communication sent by their counsel also did not reach them. In the plaint, address of the Defendant is given as, "D.Nos. 28, 29, Vinayagar Koil Street, No.1, Krishnapuram, Singanallur Post, Coimbatore. In his evidence, the third Petitioner has stated that after death of his father, he shifted his residence temporarily to D.No.26-B, Cheranma Nagar, Vilankurichi. To prove shifting of his residence, the Petitioner has produced Exs.P-3 and P-4 – Progress Report of his daughter and son, wherein their address is stated as B-26, Cheranma Nagar, Vilankurichi Post. At the time when PW-1 was examined he was residing at No.92A, Duraisami Lay Out, Peelamedu, Coimbatore. Trial Court has disbelieved the evidence of PW-1, finding that only the third Petitioner along with his family changed their residence. At the time when PW-1 was examined he was residing at No.92A, Duraisami Lay Out, Peelamedu, Coimbatore. Trial Court has disbelieved the evidence of PW-1, finding that only the third Petitioner along with his family changed their residence. Court below has observed that in the Petition filed under Sec.5 of the Limitation Act, Petitioners themselves have given their address as Nos.28, 29, Vinayagar Koil Street, No.1, Krishnapuram. Court below has also pointed out that Voters list, Identity card, Death Certificate, Legal Heirship Certificate were issued in the above said address at Krishnapuram. After the death of Gopal, third Petitioner was in-charge of the case. Provenly, he has shifted his residence. Second Petitioner, wife of Gopal was in her late fifties. Fourth Petitioner is the daughter of Gopal. Even assuming for the sake of arguments that Petitioners 2 and 4 were residing in Krishnapuram address in Vinayagarkoil Street, Petitioners 2 and 4 being women, might not have been in the know of things to take care of the matter. The following observations of the Supreme Court in Balakrishnans Case, squarely applies to the factual situation in this case :- "Appellants conduct does not on the whole warrant to castigate him as an irresponsible litigant. What he did in defending the suit was not very much far from what a litigant would broadly do. Of course, it may be said that he should have been more vigilant by visiting his advocate at short intervals to check up the progress of the litigation. But during these days when everybody is fully occupied with his own avocation of life an omission to adopt such extra vigilance need not be used as a ground to depict him as a litigant not aware of his responsibilities, and to visit him with drastic consequences". 17. The lower Court has placed reliance upon my decision reported in 2006(5) CTC 822 = 2006 (4) TLNJ 299. The said case arose between the family members and the Plaintiff being a widow of one Srinivasa Gounder, claimed her share from other family members. In the said suit, Preliminary Decree as well as Final Decree for partition was passed. At that stage when delivery of possession was ordered, Defendants have filed application to set aside exparte Preliminary Decree. The said case arose between the family members and the Plaintiff being a widow of one Srinivasa Gounder, claimed her share from other family members. In the said suit, Preliminary Decree as well as Final Decree for partition was passed. At that stage when delivery of possession was ordered, Defendants have filed application to set aside exparte Preliminary Decree. Observing that Plaintiff was allotted her lawful share and Revision Petitioners cannot be heard to contend that allotment of such lawful share has caused serious prejudice to them and in peculiar facts and circumstances of that case, Court has declined to condone the delay of 32 days. Factual situation in that case cannot be compared to the instant case. 18. After previous counsel engaged by the Petitioners also passed away, one could easily perceive that it would have taken much time to get back case records and entrust the matter to other counsel. I find Petitioners have satisfactorily explained the delay during this period. 19. In the meantime, E.P.No.401/2003 was filed. It is the case of Petitioners that they were not served with summons in the execution proceedings. Per contra, it is the case of the Respondent/Plaintiff that Petitioners were served with notice in the execution proceedings. What ever it be, in February 2004, Petitioners have filed application to set aside the exparte Decree passed against them along with application under Sec.5 of the Limitation Act [I.A.No.160/2004], to condone the delay of 276 days in filing the application under Or.9 R.13 CPC. Court below has observed that Petitioners/Defendants did not take any steps to take up I.A.No.160/2004 for hearing and in the meantime, Sale Deed was executed. The trial Court blamed the Petitioners/Defendants for not taking steps to set aside the exparte Decree and attributed negligence to the Petitioners. For more than one reason, reasonings of the trial Court cannot be endorsed with. 20. As noticed earlier, application I.A.No.160/2004 was filed in February, 2004 and the Plaintiff had taken notice. The application was posted for notice of hearing and counter by 19.04.2004. Again on 19.04.2004, application was called and adjourned to 08.06.2004 for filing of counter. Thereafter, nearly for 2½ years, application was not at all called in open Court. Only on 010. 2006, again the application was called with the following endorsement of the Court :- "010. 2006 Omitted to be taken up today: Give notice to both sides. Again on 19.04.2004, application was called and adjourned to 08.06.2004 for filing of counter. Thereafter, nearly for 2½ years, application was not at all called in open Court. Only on 010. 2006, again the application was called with the following endorsement of the Court :- "010. 2006 Omitted to be taken up today: Give notice to both sides. Counter by 16/10. Signed. II ASJ .21. It is evident from the records that for more than 2½ years, application I.A.No.160/2004 was not at all called. In the meantime, in the execution proceedings, many orders came to be passed causing serious prejudice to the Petitioners. The counsel on record for the Petitioners made attempts in vain, making request to the District Judge to trace Sec.5 application filed by the Petitioners. Reason for missing of records, whether it is deliberate or accidental is not known. During the period when the application was not traceable, many orders were passed in E.P. For not condoning the delay, trial Court has laid repeated emphasis upon various proceedings in the execution Petition. Observing that condonation of delay would unsettle several things, trial Court declined to condone the delay. The lower Court grossly erred in not taking serious view of the serious aspect of missing of I.A.No.160/2004 and non calling of the matter in the open Court for nearly 2½ years, which has greatly prejudiced the Petitioners. Drawing attention of the Court to subsequent proceedings in execution Petition, the learned Counsel for the Respondent submitted that in E.P.No.301/2005, filed for taking delivery of possession, Petitioners have filed application to recall delivery warrant and also filed applications to stay the proceedings but had not chosen to pursue the same. It was further submitted that only when Decree-Holder has filed application to break open the door and for police protection for taking delivery, application I.A.No.160/2004 was brought before the Court, with intention to delay further proceedings. Petitioners were under bonafide impression that they are diligently pursuing the matter by filing application to set aside the exparte Decree along with application to condone the delay in filing application under Or.9 R.13 CPC. After engaging a lawyer, the party may remain confident that the lawyer will look after his case. Therefore, party having done everything within reach by engaging counsel, Petitioners cannot be faulted for not filing applications in the execution proceedings. Petitioners were handicapped as I.A.No.160/2004 was not called in Court. After engaging a lawyer, the party may remain confident that the lawyer will look after his case. Therefore, party having done everything within reach by engaging counsel, Petitioners cannot be faulted for not filing applications in the execution proceedings. Petitioners were handicapped as I.A.No.160/2004 was not called in Court. Apart from the lawyers mistake, the disturbing feature of this case is that the papers were found to be missing and not called in Court for more than 2½ years. In the facts and circumstances of the case, explanation putforth by the Petitioners is satisfactory. But Court below went wrong in declining to condone the delay on the only premise that subsequent proceedings had been ordered in the execution Petition. In the words of Supreme Court, "it must be grasped that the judiciary is respected not on account of its power to legalize injustice on technical grounds, but because it is capable of removing injustice, and is expected to do so". [ 2005 (3) SCC 752 ]. 22. When there is improper exercise of discretion by the lower Court, the High Court can consider the matter afresh and sufficiency of the cause shown, untrammelled by the reasonings of the trial Court. .23. Even though Petitioners appear to be not vigilant as they ought to have been, yet their conduct on the whole does not warrant to castigate them as irresponsible litigant. .They should have been more vigilant, but their failure to take such extra vigilance should not have been made a ground for ousting them from litigation with respect to the property. It is to be noted that the suit is one for specific performance on the basis of the Registered Agreement dated 011. 1997. Respondent/Plaintiff is said to have paid consideration of Rs.3,00,000/- + Rs.1,00,000/-. Balance sale consideration payable is stated to be only Rs.25,000/-. Though the Agreement is of the year 1997, the suit was filed only in the year 2000. 24. Decree for Specific Performance is discretionary relief. Mandatory requirements of readiness and willingness and other aspects are to be proved by Plaintiff for obtaining a Decree for Specific Performance. Balance sale consideration payable is stated to be only Rs.25,000/-. Though the Agreement is of the year 1997, the suit was filed only in the year 2000. 24. Decree for Specific Performance is discretionary relief. Mandatory requirements of readiness and willingness and other aspects are to be proved by Plaintiff for obtaining a Decree for Specific Performance. When the suit relates to the immovable property and the value of the property is said to be worth several lakhs, as held by the Supreme Court in 2001(6) SCC 176 , while deciding the application to set aside the exparte Decree, Court should have kept in mind the Judgment impugned, the extent of the property involved and stake of the parties. The trial Court does not seem to have kept in view the nature of the suit and the stake of the parties and well settled position of law by Supreme Court. 25. No doubt in the execution Petition, Sale Deed was executed by the Court on 12.04.2005 during which period, the application filed by the Petitioners under Sec.5 of the Limitation Act and Or.9 R.13 CPC were found missing and not called in Court. Had those applications been called and determined, position of the parties might entirely have been different. By condoning the delay in filing the application to set aside exparte Decree, this Court is not oblivious of the inconvenience that might be caused to the Respondent. Respondent/Plaintiff might have to suffer on account of setting aside the exparte Decree, since he has already paid a sum of Rs.34,000/-towards stamp duty for sale and other incidental expenses. In similar circumstances, taking note of the inconvenience caused to the Respondent, in 2001(6)SCC 176 [M.K. Prasad Vs. Arumugam], the Supreme Court has condoned the delay on payment of exemplary cost of Rs.50,000/- to be paid to the opposite party. Supreme Court has held as follows :- "We are of the opinion that the inconvenience caused to the Respondent for the delay on account of the appellant being absent from the Court in this case can be compensated by awarding appropriate and exemplary costs. In the interest of justice and under the peculiar circumstances of the case, we set aside the Order impugned and condone the delay in filing the application for setting aside exparte Decree. In the interest of justice and under the peculiar circumstances of the case, we set aside the Order impugned and condone the delay in filing the application for setting aside exparte Decree. To avoid further delay, we have examined the merits of the main application and feel that sufficient grounds exist for setting aside the exparte Decree as well". 26. The learned Counsel for the Revision Petitioners has also drawn the attention of the Court to an unreported decision in A.No.900/2003. In the said decision, having regard to the peculiar facts and circumstances of the case and keeping in view the extent of the property involved and the stake of the parties and referring to the decision 2001(6) SCC 176 [cited supra], learned Single Judge has condoned the delay of 533 days in filing the application to set aside the exparte Decree on payment of exemplary cost of Rs.50,000/- to be paid to the Plaintiff. Decision of the learned Single Judge was confirmed by the Division Bench in the decision reported in 2004(1) LW 491 . 27. Since there is no proper exercise of discretion, the impugned Order is to be set aside, however on payment of an exemplary cost of Rs.50,000/- [Rupees Fifty Thousand only] to be paid to the opposite party. To avoid further delay, this Court has examined the merits of the main application under Or.9 R.13 CPC and feel that sufficient grounds exist for setting aside the exparte Decree as well. 28. Consequently, this Revision Petition is allowed. The application I.A.No.160/2004 for condoning the delay and Or.9 R.13 CPC for setting aside the exparte Decree shall stand allowed on payment of cost of Rs.50,000/-to be paid to the Respondent Plaintiff within a period of six weeks from the date of this Order. On failure to pay the cost within the time specified, applications shall stand dismissed and all other proceedings ordered in the execution proceeding shall stand revived. It is clarified that cost of Rs.50,000/-is ordered in lieu of the Stamp Duty paid by the Respondent Plaintiff for getting the Sale Deed executed and towards the cost for the inconvenience caused to the Respondent over the period.