Dismissed¶¶39

Rajat Nandi v. Srabani Ghosh Paul and Anr.

Calcutta HC16 Feb 2026FAT/358/2025

Case brief

AI extract

What is this about?

Condonation of delay refused; first appeal FAT 358 of 2025 dismissed as time-barred; ex parte decree dated August 25, 2017; discrepancies in condonation application as to year of knowledge (2017/2023/2025); Miscellaneous Case no. 243 of 2023 under Order XXI Rules 99 to 101 CPC not an alternative remedy to regular appeal against parent decree; third party-judgment resistor vs claim through judgment debtor; Section 14 Limitation Act benefit unavailable; mala fide and grossly negligent conduct; Calcutta HC; Rajat Nandi v. Smt. Srabani Ghosh (Paul) and Anr.; Sabyasachi Bhattacharyya, J.

What did the court decide?

The Court found several discrepancies in the application for condonation of delay. ¶¶22

Rajat Nandi Vs Srabani Ghosh Paul and Anr. — Calcutta HC (2026) — LawSathi Research

What the court decided

AI extract

Outcome

Dismissed

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Issue for consideration

Whether sufficient explanation has been furnished for the delay in preferring the appeal (FAT 358 of 2025), so as to justify condonation of delay sought in CAN 2 of 2025. +1 more

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Court's answer

The Court found several discrepancies in the application for condonation of delay.

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Ratio / Principle

The negligent conduct of the appellant is evident from the averments made in the condonation application itself.

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Key takeaways

Construing the averments in the condonation application, the knowledge derived by the appellant in July 2017 was regarding the pendency of the suit itself, not the ex parte decree dated August 25, 2017.ratio¶¶27
Contradictory pleas were taken in the condonation application as to the year in which knowledge of the ex parte decree was derived (2023 in places, 2025 elsewhere).ratio¶¶28
At the latest, the appellant had knowledge of the ex parte decree in 2023, since Miscellaneous Case no. 243 of 2023 was preferred by him under Order XXI Rules 99 to 101 CPC in connection with the execution case levied from that decree.

Detailed headnote1 paragraphs

High Court at Calcutta, FAT 358 of 2025 (Rajat Nandi v. Smt. Srabani Ghosh (Paul) and Anr.), judgment dated February 16, 2026 (Sabyasachi Bhattacharyya, J.; Supratim Bhattacharya, J. concurring): the application for condonation of delay (CAN 2 of 2025) in filing the first appeal against an ex parte judgment and decree dated August 25, 2017 was dismissed on contest, and the appeal was dismissed as time-barred. The condonation application contained material discrepancies, suggesting knowledge of the decree variously in 2017, 2023 and 2025. The Court held that the knowledge derived in July 2017 related to the pendency of the suit itself, and that at least by 2023 the appellant had knowledge of the ex parte decree, having then filed Miscellaneous Case no. 243 of 2023 under Order XXI Rules 99 to 101 of the Code of Civil Procedure in connection with the execution case levied from that decree, after dispossession from the suit property on July 24, 2023. The Court further held that a proceeding under Order XXI Rules 99 to 101 is not an alternative remedy to a regular appeal against the parent decree: a third party-judgment resistor claims title independent of the judgment debtor, whereas the appellant claimed title through the judgment debtor by alleged purchase, rendering the pleas contradictory; consequently, the benefit of Section 14 of the Limitation Act could not be made available. Waiting for the outcome of the miscellaneous case before appealing was indicative of mala fide intent and gross negligence, and no sufficient explanation for the delay was furnished. CAN 3 of 2025 was consequentially disposed of; no order as to costs.

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Form No.J(2)

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IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction Appellate Side

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Present : The Hon’ble Mr. Justice Sabyasachi Bhattacharyya &

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The Hon’ble Mr. Justice Supratim Bhattacharya

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FAT 358 of 2025

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with CAN 2 of 2025 with CAN 3 of 2025

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Rajat Nandi

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Vs.

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Smt. Srabani Ghosh (Paul) and Anr.

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For the appellant : Mr. Prantick Ghosh, Mr. Siddhartha Sarkar, Ms. Poulami Saha, Mr. Sourav Gupta, Advs. For the respondent no. 1 : Mr. Souradipta Banerjee, Ms. Fautima Hassan, Advs. Heard on : February 16, 2026. Judgment on : February 16, 2026.

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Sabyasachi Bhattacharyya, J.:

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Affidavits in opposition and reply filed today be kept on record.

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At the outset, learned counsel for the respondent no. 1/decree holder points out to several discrepancies in the condonation application.

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Learned counsel places the contents of sub-paragraph (j) of paragraph no. 2 of the condonation application, where it has been stated that on July 24, 2023, the appellant/petitioner was dispossessed from the suit property and came to know about the existence of the judgment and decree impugned in the present appeal on August 24, 2023.

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Thereafter, an application under Order XXI Rules 99 to 101 of the Code of Civil Procedure, bearing Miscellaneous Case no. 243 of 2023, was preferred by the appellant. Only after losing before the executing Court in the said case, an appeal was preferred against the deemed decree passed therein along with the present appeal.

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Again, in sub-paragraph (q) of paragraph no. 2 of the application, it has been stated that the petitioner met his advocate-on-record in the Trial Court to collect the documents from his office on June 20, 2017 and the advocate-on-record asked the appellant/petitioner to meet him in June 27, 2017. Thereafter, on July 10, 2017, allegedly the appellant/petitioner

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was informed by the clerk of the said advocate that some of the records were found available “from the garbage”. Subsequently, the appellant, according to sub-paragraph (q), collected the available documents on July 15, 2017.

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Thus, it is argued that it will be evident from the averments in the condonation application itself that the defendant/appellant derived knowledge of the impugned judgment and decree dated August 25, 2017 in the year 2017 itself.

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Moreover, it is argued that in the affidavit-in-reply filed to the opposition, the appellant has repeated and reiterated the statements made in the condonation application.

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We find several discrepancies in the application for condonation of delay.

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The negligent conduct of the appellant is also evident from the averments made in the present application for condonation itself.

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It is not understandable as to how the appellant derived knowledge of the ex parte decree dated August 25, 2017 on June 20, 2017.

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Thus, it has to be construed, in the perspective of the averments made in the condonation application, that the

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knowledge derived in July, 2017 by the appellant was regarding the pendency of the suit itself.

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Further contradictory pleas have been taken in the condonation application, sometimes stating that knowledge of the ex parte decree was derived in the year 2023, whereas in other places, in the year 2025.

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Irrespective of all the other averments and the discrepancies therein, there cannot be any doubt that at least in the year 2023, the appellant had knowledge of the ex parte decree, since Miscellaneous Case no. 243 of 2023 was preferred by the defendant/appellant under Order XXI Rules 99 to 101 of the Code of Civil Procedure in connection with the execution case levied from the ex parte decree.

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A proceeding under Order XXI Rules 99 to 101, it may be noted, is not an alternative remedy to a regular appeal against the parent decree. The two operate on separate footings. Whereas, under Order XXI Rules 99 to 101 of the Code, a third party-judgment resistor is entitled to claim his title independent of the judgment debtor, the present appeal from the main decree has been premised on the alleged purchase of the appellant from the judgment debtor in the suit, therefore

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claiming title through the judgment debtor. Thus, the said pleas are contradictory to each other and cannot be construed to be alternative remedies which were erroneously pursued by the appellant.

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Hence, the benefit of Section 14 of the Limitation Act cannot be made available to the appellant as well.

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It is evident that only after waiting for the outcome of the miscellaneous case filed by the appellant under Order XXI Rules 99 to 101 of the Code, the appellant chose to prefer the present appeal after suffering a defeat therein.

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Thus, a chance was taken by the appellant, which itself is indicative of the mala fide nature of the application. Moreover, the appellant was grossly negligent, since there is no plausible explanation as to why no regular appeal was preferred with leave (since the appellant was not a party to the suit) before the year 2025, when the appellant learnt of the decree for the first time as long back as in the year 2023.

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