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CDJ 2026 Sikkim HC 028 My Notes print Preview print print
Court : High Court of Sikkim
Case No : I.A. No. 01 of 2025 (Arising out of) MAC. Appeal No.02 of 2022
Judges: THE HONOURABLE MR. JUSTICE BHASKAR RAJ PRADHAN
Parties : Aita Maya Gurung & Others Versus Ratna Kumar Pradhan & Others
Appearing Advocates : For the Appellants: Tashi Doma Bhutia, Pritima Sunam, Pratima Subba Limboo, Choki Sherpa, Advocates. For the Respondents: R1, N. Rai, Senior Advocate, Tara Devi Chettri, R3, Kshitij Mittal, Papai Mondal, Advocates.
Date of Judgment : 01-10-2026
Head Note :-
Limitation Act, 1963 - Section 5 -
Judgment :-

Order (Oral)

Bhaskar Raj Pradhan, J.

1. This is to consider an application under section 5 of the Limitation Act, 1963 for condonation of delay in filing the application for setting aside the ex parte judgment and award dated 17.04.2023 passed by this Court.

2. According to the applicant who was respondent no.3 before this Court in MAC Appeal No.02 of 2022 i.e. Aita Maya Gurung & Ors. vs. Ratna Kumar Pradhan & Ors. there is a delay of 32 days. The learned counsel for the contesting parties asserts otherwise. According to them there is a delay of 1 year 8 months and 20 days.

3. The learned counsel for the applicant draws my attention to Article 123 of the Limitation Act, 1963 which prescribes a period of 30 days from the date of the decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree to set aside a decree passed ex parte or to re-hear an appeal decreed or heard ex parte.

I.A. No.01 of 2025 Arising out of)

4. The application states that the applicant came to learn about the ex parte order/award dated 17.04.2023 for the first time when they received a summons/notice dated 27.11.2024 issued by the Joint Registrar-cum-Reader regarding contempt petition being I.A. No.01 of 2024 in Contempt Case (C) No.105 of 2024. Accordingly, they took steps, hired an advocate and thereafter approached this Court. It is submitted that the delay was not intentional.

5. As the application relates to a judgment passed by this Court I have perused the orders passed before the judgment was pronounced. It is noticed that notice was issued upon the respondents for the first time on 28.06.2022. Although on the next date i.e. 10.08.2022 the order records that the respondent no.3 was absent despite due service of notice as the online tracking reported delivery of item on 04.07.2022, this Court thought it fit to reissue notice upon the applicant/respondent no.3. Several orders were passed after that until the order dated 17.04.2023 records the passing of the judgment which was pronounced in open court in the absence of the applicant. The order immediately preceding the order dated 17.04.2023 is order dated 02.12.2022 which directs that notice be reissued to applicant/respondent no.3. There is no order which records the satisfaction of this Court that the applicant/respondent no.3 has been served.

6. I am thus of the considered view that the delay in filing this present application ought to be condoned to enable this court to hear on the merits of I.A. No.2/2026 which is an application under Order IX Rule 13 read with section 151 of the Code of Civil I.A. No.01 of 2025 Arising out of) Procedure, 1908 for setting aside the ex parte judgment and award dated 17.04.2023 passed by this Court.

7. The delay is condoned. The application is allowed and disposed of.
 
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