Judgment & Order (Oral)1. Heard Mr. B Sarma, learned counsel for the applicant and Mr. B.D. Deka, learned counsel appearing on behalf of legal heirs of deceased Baneswar Das, the respondent No. 1 in LA Appeal No. 36/2018 and the Decree holder in Money Execution case No. 29/2015 pending in the executing court of learned District Judge, Kamrup at Amingaon.2. The LA Appeal No. 36/2018 was filed on 25.05.2018 in this court against the judgment and order dated 17.01.2015 passed in Misc Reference Case No. 43/2014 (New) corresponding to Misc Reference Case No. 01/2006 (Old) passed by the learned District Judge, Kamrup (R) at Amingaon. There was delay of 1130 days in preferring the LA Appeal 36/2018 and as such IA (Civil) 2142/2018 was filed for condonation of the delay of 1130 days. By the said judgment dated 17.01.2015 in Reference Case No. 43/2014, late Baneswar Das, the petitioner therein was awarded compensation of Rs. 13,20,000/- along with 9% interest on the said amount from the date of acquisition of a plot of land measuring 2 Kathas 10 Lechas covered by KP Patta No. 177 of village Bihdiya under Mouza Chaygaon which was acquired in LA case No. 43/1987 for construction of Jogighopa-Guwahati railway line. The said Baneswar Das filed Money Execution case No. 29/2015 in the court of learned District Judge, Kamrup (R) at Amingaon in order to execute the order passed in the said reference case as there was no move on the part of the applicant Railways for compliance of the award. The land was acquired by the District Collector, Kamrup (R) for the requiring department i.e. the applicant Railways and as such it was impleaded as the judgment debtor No. 2 in the execution proceeding. Once it came to the knowledge of the present applicant, NF Railway it preferred a petition as the judgment debtor No. 2 in Money Execution No. 29/2015 under Order XXI Rule 26 of the CPC seeking for stay of the execution proceeding on the ground that the applicant railway authority was contemplating to prefer an appeal in the High Court. After filing of the said petition on 15.11.2016, the matter was adjourned for hearing on different grounds and the execution proceeding was pending.3. On 29.03.2017 the decree holder Baneswar Das filed written objection against the petition filed by the applicant Railways under Order XXI Rule 26 of the CPC. In the said objection it was specifically stated that the applicant Railways filed the application under Order XXI Rule 26 of the CPC as a dilatory tactics to avoid execution of the award. It was further raised that the time for filing appeal against the judgment and order had already elapsed by more than two years from the date of passing the judgment. The said petition under Order XXI Rule 26 of the CPC was finally disposed of vide order dated 12.10.2018 by the learned District Judge, Kamrup at Amingaon. Vide the said order, the petition under Order XXI Rule 26 was disposed of giving no further time to the applicant Railways for preferring appeal. The decree holder Baneswar Das was directed to take appropriate steps in the execution proceeding. 09.03.2018 was the next date fixed in Money Execution No. 29/2015. The applicant Railways appeared and filed a petition seeking some more time for payment of decreetal amount as the certified copy of the court's judgment was not with it. Vide order dated 09.03.2018, next date in the execution proceeding was fixed on 07.04.2018 for payment/ steps/ necessary order.4. On 19.05.2018, the decree holder filed an application No. 1170/2018 seeking for execution of the decree at the earliest as the decree holder was suffering ailments like lung infections who was bed ridden for which he required money for his treatment. The executing court upon consideration of the said prayer of the decree holder fixed 22.05.2018 for submission of order passed in the appeal proposed to be filed by the applicant Railways. On 21.06.2018, the applicant Railways appeared before the executing court informing that LA Appeal No. 36/2018 was fixed for admission hearing and accordingly prayed for staying further proceeding in the execution case.5. This court vide order dated 13.03.2019 passed in IA (Civil) 2142/2018, while the matter was listed, heard the learned counsel of both parties. The learned counsel appearing for the respondent submitted that the applicant Railways failed to give proper explanation for the delay of 1130 days in preferring the appeal. The applicant even failed to substitute the legal heirs of the sole respondent (Baneswar Das) who died on 11.08.2018 during the pendency of proceeding in this court. It was also brought to the notice of this court by the learned counsel for the respondent that information regarding the demise of the respondent/ decree holder Baneswar Das in Money Execution Case No. 29/2015 was furnished to this court as recorded in the order dated 03.10.2018. Notwithstanding the same, no action for substitution was initiated by the applicant.6. The learned counsel for the applicant Railways informed this court that before the executing court wherein the legal heirs of the deceased decree holder Baneswar Das filed substitution petition was disputed by the Railways on the ground that it was not in accordance with law and till such time the said issue was decided by the executing court, the necessity to file substitution application in the present appeal was not required as per the provision under Order XXII Rule 5 of the CPC.7. This court vide order dated 13.03.2019 after hearing the parties held that the LA Appeal No. 36/2018 had already abated by operation of law. The appeal was closed by granting leave to the applicant Railways to file appropriate application for setting aside the abatement furnishing sufficient explanations.8. Behind the said backdrop, the applicant Railways filed this present I A (Civil) No. 1846/2019 for condonation of delay of 90 days while taking steps for substitution of the respondent, Baneswar Das in the appeal and the delay condonation petition, IA (Civil) 2142/2018. Two other applications were also filed for setting aside the abatement and for substitution. The grounds for condonation of delay pleaded by the applicant are extracted below:"(7) That the petitioner begs to state that, after coming to know about the judgment passed by the learned Reference court and on being aggrieved with the impugned judgment dated 17.01.2015 passed in the Misc. Reference Case No. 43/2014, the petitioner preferred an appeal before the Hon'ble High Court which was registered as LA App. No. 36/2018 along with an Interlocutory Application bearing IA (C) No. 2142/2018 for condonation of the delay in preferring the Appeal.(8) That the petitioner begs to state that, during pendency of the Interlocutory Application No. 2142/2018, the sole opposite party was expired and the said information was brought to the knowledge of the Hon'ble court which was reflected in the order dated 03.10.2018 passed in IA No. 2142/2018.(9) That the petitioner begs to state that the opposite party had also brought the information regarding death of the sole Opposite Party/ Decree holder before the learned Executing court vide application dated 29.09.2018 and the reply/ objection to the said petition for substitution was filed by the petitioner on 09.11.2018. Thereafter the matter was pending for hearing but as the opposite party/ decree holder remained absent on 19.01.2019 and also sought for adjournment on 08.03.2019, the hearing was adjourned and the matter is fixed on 10.05.2019 for hearing on the substitution petition.(10) That the petitioner begs to state that on 19.11.2018, during the course of hearing IA No. 2142/2018, the petitioner had brought the information regarding pendency of dispute before the learned executing court, in connection with substitution of the legal heirs of the decree holder and the Hon'ble court, after hearing both the parties was pleased to record the submission which has been reflected in the order dated 19.11.2018 passed in IA No. 2142/2018.(11) That the petitioner begs to state that as per provisions laid down under Order 22 Rule 4 of the Code of Civil procedure 1908, the petitioner was supposed to prefer an application for substitution of the legal heirs of the deceased respondent. Further, as per provision laid down under Order 22 Rule 5 of the Code of Civil procedure 1908, if a dispute regarding substitution is being raised before the Hon'ble appellate court, the Hon'ble appellate court was supposed to refer the dispute to any subordinate court to try the question of substitution and after adjudicating the same, the learned subordinate court may return the case record with its finding to the Hon'ble appellate court and only after that, the Hon'ble appellate court may take the said finding into consideration in determining the question of substitution"9. One Sonaram Das, the constituted Attorney of the legal heirs of Baneswar Das, the opposite parties in the delay condonation petition filed his objection cum affidavit-in- opposition raising the objection as follows:"8. That in this regard the legal heirs of the deceased Opposite Party beg to bring in to notice of this Hon'ble Court the fact that applicant vide application dated 15.11.2016 filed before the learned Executing Court had expressed an intention to file an appeal but no such appeal was filed by the applicant for the following two years and the learned Executing Court filed vide order dated 12.01.2018 dismissed the application of the applicant. The applicant had sought nearly thirteen adjournments in the course of the disposal of the application dated 15.11.2016 and as such the learned Executing Court was finally forced to dismiss the application owing to the inordinate delay caused by the applicant in filing the appeal. These acts on the part of the applicant are clearly indicative of the fact that the primary motive of the applicant was causing delay in the disposal of the matter and no bona fide can be attributed justifying the same. The applicant had in an attempt to further delay the proceedings filed an application on 09.03.2018 and had undertook to pay the decreetal amount and sought some time in that regard. But the said act of the applicant was a mere sham and under the grab of the said application the applicant kept on deferring the matter on one pretext or the other. Moreover, it would not be out of place to mention the fact that the deceased opposite party was suffering from several ailments including lung infections and kidney stones and had also informed the learned Executing Court regarding the same and prayed for expeditious execution of the decree vide an application numbered as petition No. 1170/2018. The deceased opposite party was in need of urgent financial aid for the purpose of availing medical treatment and as such had filed an application for expeditious disposal of the case but owing to the dilatory tactics adopted by the applicant, the opposite party passed away in the absence of proper medical facilities. The appeal itself was filed with a delay of 1130 days. Unfortunately, the Executing Court has also not proceeded with execution of the decree although there is no stay operating."10. Mr. Sarma, learned counsel for the applicant Railways submits that there was no intentional delay on the part of the applicant in preferring the present application for condonation of delay of 90 days. It is his contention that as public money is involved this court may take liberal view in condoning the delay in allowing the substitution of the legal heirs of the deceased respondent Baneswar Das. In support of his contention, Mr. Sarma relies in State of Assam and Ors. V. Susrita Holdings Pvt. Ltd reported in AIR 2014 Supreme Court 2307 and submits that the malfunctioning of the State Government regarding the unpardonable lackadaisical attitude towards pursuing matter in the court of law cannot be the reason for loss of public property, which involves public money and causes loss to the public exchequer. Accordingly, Mr. Sarma submits that applying the said ratio this court may take liberal view for condoning the delay of 90 days.11. Mr. Deka vehemently objected to the submission of the learned counsel. It is his contention that the applicant Railways had made intentionally the delay in order to avoid payment of the award. The respondent, Baneswar Das suffered a lot and finally he died due to his ailments. Finding no alternative the said respondent even filed an application before the executing court to dispose of the said proceeding at the earliest as he was in need of money for his treatment. The fact of death of the sole respondent was known to the counsel of the applicant Railways even before it was disclosed to this court inasmuch as it contested the execution proceeding wherein an application was filed by one Attorney of the legal heirs of the deceased decree holder Baneswar Das. Therein an objection was raised by the applicant railway and mere pendency of that application before the executing court cannot be a ground for condoning the delay. The delay is intentional and the question of taking liberal view does not come at all. In support of his submission Mr. Deka relies Maniben Devraj Shah V Municipal Corporation of Brihan Mumbai reported in (2012) 5 Supreme Court Cases 157 and submits that substitution right of parties should not be ignored because of delay, but a distinction must be made between delay of few days and inordinate delay causing prejudice to the other side. He also relied on the decision in Office of the Chief Post Master General and Ors. Vs. Living Media India Ltd. And Anr reported in (2012) 3 SCC 563.12. I have given due consideration to the submissions made by the learned counsel. The fact that the applicant Railways was maintaining a lackadaisical attitude can very well be inferred if its acts and deeds in the executing court are considered which requires no further reference here for the sake of brevity. It is well within the knowledge of the officials of the applicant Railways that they misinformed the executing court. In its application under Order XXI Rule 26 CPC the Railways sought for stay of the execution proceeding on the ground that it was going to file an appeal before the High Court challenging the judgment passed in the reference case. But it failed to come to the appellate court timely and at the time of filing of the appeal there was delay of 1130 days for which they filed a separate application for condonation of delay. The applicant Railways was fully aware of the death of the respondent inasmuch as it was a party in the execution proceeding as judgment debtor No. 2. Even after having the said knowledge of death of Baneswar Das the respondent, the applicant Railways did not take any steps in order to bring on record the legal heirs of the deceased respondent even on the delay condonation petition i.e. IA (Civil) No. 2142/2018. This led to abatement of the appeal itself. Once it was brought to the notice of this court it held that the appeal was abated by operation of law. Thereafter, the applicant filed the present application for condonation of delay of 90 days in preferring the substitution petition seeking extension of time on the grounds referred hereinabove.13. Sufficiency of causes while deciding a delay condonation application has its elasticity keeping in view the factual matrix in a particular case. Here in the case the intent of causing delay both in preferring the appeal and the substitution applications were with the oblique purpose to delay the execution proceeding. In order to buy time, the applicant Railways had gone to the extent of misleading the executing court by submitting an application before the executing court that it would satisfy the award. The executing court accepted the said submission and even passed an order to that effect. Subsequently, the applicant Railways informed the executing court that LA Appeal No. 36/2018 was filed and pending before the High Court. The executing court directed to furnish any stay order which the applicant Railways failed to produce and submit before it. Thereafter, having failed to stay the execution proceeding, the applicant Railways filed this application for condonatioin of delay along with substitution petition for bringing the legal heirs of the deceased respondent Baneswar Das.14. The grounds mentioned in this application are not at all satisfactory. That an objection was raised in a separate court disputing the identities of legal heirs cannot be a ground for condonation of delay in a proceeding before another court. So I am not at all inclined to accept the said cause as sufficient for condonation of the delay. While disposing of an application for condonation of delay, in my considered opinion the conduct of the applicant seeking the condonation is very vit
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al in order to assess the degree of due diligence of the applicant in coming to the court. Similarly, the court is bound to consider the extent of prejudice they may be caused to the other side in the event of condoning the delay. In the present case in hand, the respondent who was the decree holder died due to poverty inasmuch as it is on record in the execution proceeding that the deceased respondent was in dire necessity of money for treatment of his ailments. Had the applicant Railways been diligent in taking the necessary steps the question of delay of 1130 days would not have occurred. It is only due to negligence on the part of the Railway officials, the respondent Baneswar Das was deprived from enjoying the award passed by the competent court and that too against his legitimate claim granted under a beneficial legislation, the Land Acquisition Act, 1894. Accordingly, even if the delay in this application is of 90 days, I am bound to consider the manner and the conduct of the applicant Railways before the executing court which is brought on record by filing an objection by the respondents. If the delay is condoned, in my considered opinion, the prejudice which the deceased defendant had already faced cannot be compensated and accordingly I am constrained to hold that the grounds mentioned in this delay condonation petion are not sufficient to condone the delay in taking steps for substitution of the legal heirs of the deceased respondent, Baneswar Das. Further the applicant Railways also misinformed the executing court that it would deposit the awarded amount which by the subsequent acts of the applicant Railways shows that the same was only for getting respite from the process of execution of the award. The applicant Railways was not at all diligent in conducting the appeal. Accordingly, this interlocutory application is dismissed. No costs.