1 CGHC010267232026 2026:CGHC:30919 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MA No. 112 of 2026 Bhagirathi Tamrakar S/o Late Shri Kundan Mal Tamrakar, Aged About 65 Years R/o Old Gurudwara, Opposite Vaheguru Travels, Third House Of The Street, Station Road Durg, Tahsil And Distt - Durg (C.G.). ... Appellant/applicant versus Bhi. Maheshwar Rao S/o Bhi. Venkat Rao, Aged About 39 Years R/o Bhimapara, Tahsil And Distt- Durg (C.G.). ... Respondent/Non-Applicant For Appellant : Mr. Keshav Dewangan, Advocate. For Respondent : None. Hon’ble Shri Justice Naresh Kumar Chandravanshi, J Order on Board (21st July, 2026) This miscellaneous appeal has been preferred by the appellant/defendant challenging the order dated 15.5.2026 passed by II District Judge, Durg in MJC Case No.494/2024 whereby application filed by the appellant/defendant/judgment debtor under Order 9 Rule 13 of CPC has been rejected. 02. Learned counsel for the appellant would submit that Civil Suit No.89-A/2015, parties being Bhi. Maleshwar Rao Vs. Bhagirathi 2 Tamrakar and another, was filed by the respondent/plaintiff for specific performance of contract in which the appellant had engaged a counsel but the said counsel without informing the appellant remained absent on 11.5.2016 which led to initiation of ex parte proceeding against him and ultimately passing of the ex parte judgment and decree on 5.11.2016 by the II Upper District Judge, Durg in Civil Suit No.89-A/2015. Learned counsel further submits that since 17.12.2015 to 5.5.2016, the counsel continuously appeared on behalf of the appellant/defendant, however, subsequently he remained absent without informing the appellant/defendant. He submits that the trial Court also did not issue any notice to the appellant/defendant and for the first time, the appellant/defendant came to know about passing of the ex parte judgment and decree on 22.8.2024 when notice of attachment warrant was served to him. He further submits that delay occurred in filing the application under Order 9 Rule 13 of CPC i.e. from 5.11.2016 to 22.8.2024 ought to have been condoned by the trial Court and the aforesaid application ought to have been allowed. He submits that the appellant/defendant had filed an application under Section 5 of the Limitation Act along with the application under Order 9 Rule 13 of CPC but no specific order has been passed in respect of the application under Section 5 of the Limitation Act. Thus, the impugned order suffers from perversity and illegality, therefore, he prays that the appeal may be allowed and the impugned order may be set aside. 03. Heard learned counsel for the appellant and perused the 3 documents annexed with the appeal including the impugned order. 04. A perusal of the impugned order reveals that Civil Suit No.89-A/2015 was listed on 17.12.2015, 22.02.2016, 28.03.2016, 12.04.2016 and 05.05.2016, on each of which dates the counsel appearing for the appellant sought adjournments for filing of written statement. However, on 11.05.2016, neither the appellant/defendant nor his counsel appeared before the trial Court, thereby compelling the Court to proceed ex parte against the appellant/defendant. Thereafter, the matter was listed again and again for other consequential proceedings until the ex parte judgment and decree came to be passed on 05.11.2016. The aforesaid chronology unmistakably demonstrates that the appellant/defendant remained completely indifferent towards the progress of the litigation. During the entire period extending from 17.12.2015 till 05.11.2016, he neither appeared personally before the Court nor made any endeavour to ascertain the status of the proceedings from his engaged counsel or from the Court itself. Such prolonged inaction on the part of a litigant cannot be regarded as conduct consistent with ordinary prudence and diligence. 05. It is also evident from the documents annexed with the appeal that the respondent/decree-holder initiated execution proceedings on 18.03.2020. The order sheets of the execution case disclose that several notices were issued to the appellant/judgment-debtor. Thereafter, on 10.05.2024, upon production of the track consignment 4 report evidencing dispatch of the registered notice, the Executing Court repeatedly issued warrants of attachment against the appellant/defendant, which ultimately came to be served upon him. Despite these developments, the appellant/defendant entered appearance in the execution proceedings only on 18.10.2024. The aforesaid facts clearly establish that the appellant remained grossly negligent and wholly inactive in prosecuting his case for almost nine years. Even assuming that his counsel had failed to keep him informed about the proceedings, such omission on the part of the counsel could not absolve the appellant of his own obligation to remain vigilant regarding litigation instituted against him. A litigant who has engaged counsel cannot remain in complete oblivion for years together without making the slightest effort to ascertain the status of his case. The law assists the vigilant and not those who sleep over their rights. 06. It is equally significant that the appellant/defendant had admittedly received an advance consideration of Rs.7,00,000/- from the respondent/plaintiff/decree holder towards execution of the registered sale deed relating to the suit property. While the respondent/plaintiff has been diligently pursuing the litigation since the year 2015 to enforce his contractual rights, the appellant's persistent negligence and indolence have effectively delayed the respondent/plaintiff from enjoying the fruits of the decree. Such conduct neither constitutes "sufficient cause" within the meaning of Order 9 5 Rule 13 of CPC nor deserves indulgence in the exercise of judicial discretion. 07. It is true that the learned II District Judge did not pass a specific order expressly deciding the application under Section 5 of the Limitation Act. However, a meaningful reading of the impugned order leaves no room for doubt that the issue of limitation was substantively considered. The learned trial Court has categorically recorded a finding that the appellant failed to establish any sufficient cause explaining his prolonged absence and the extraordinary delay in approaching the Court. Thus, although no independent order was passed on the application under Section 5 of the Limitation Act, the question of limitation stood duly examined while adjudicating the application under Order 9 Rule 13 of CPC. Mere absence of a separate order, in the facts of the present case, does not vitiate the ultimate decision. 08. In view of above discussions and particularly, considering the gross negligence of the appellant/defendant in pursuing his case, this Court does not find any perversity or illegality in the impugned order passed by learned II District Judge, Durg warranting interference by this Court. Accordingly, the impugned order dated 15.5.2026 is hereby affirmed and consequently, the appeal being devoid of any substance is dismissed. Sd/ (Naresh Kumar Chandravanshi) Judge Khan MOHD AKHTAR KHAN Digitally signed by MOHD AKHTAR KHAN Date: 2026.07.22 16:31:30 +0530