The High Court of Rajasthan dismissed an appeal against a decree for specific performance, holding the appeal was barred by limitation as the appellant failed to explain the six-year delay satisfactorily.
The first appeal is dismissed as being barred by limitation. No costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
S.B. CIVIL FIRST APPEAL NO.537/2011. Dilip Kumar S/o Mahaveer Prasad Brahmin (Daima) Vs. Mool Chand S/o Nathmal Saraswast (Brahmin)
.. Judgment dated 23.02.2015
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.
:: JUDGMENT ::
S.B. CIVIL FIRST APPEAL NO.537/2011.
Dilip Kumar S/o Mahaveer Prasad Brahmin (Daima) Vs. Mool Chand S/o Nathmal Saraswast (Brahmin)
Date of Judgment :::: 23th February, 2015.
P R E S E N T
HON'BLE Dr. JUSTICE VINEET KOTHARI
Appearance:
Mr. Chaitanya Gahlot, for the appellant-defendant. Mr. D.L.R. Vyas, for the respondent-plaintiff.
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BY THE COURT :
S.B. CIVIL FIRST APPEAL NO.537/2011. Dilip Kumar S/o Mahaveer Prasad Brahmin (Daima) Vs. Mool Chand S/o Nathmal Saraswast (Brahmin)
.. Judgment dated 23.02.2015
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directed to execute the sale deed Ex. 1 in relation to the suit shop situated at Churu.
S.B. CIVIL FIRST APPEAL NO.537/2011. Dilip Kumar S/o Mahaveer Prasad Brahmin (Daima) Vs. Mool Chand S/o Nathmal Saraswast (Brahmin)
.. Judgment dated 23.02.2015
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application under Section 5 of the Limitation Act has also been filed on 09.09.2011 along with the appeal states the following reasons for the huge delay of six years in filing the present first appeal, which are reproduced herein below for ready reference:-
“3. That during vacations of December, 2010 the appellant-defendant was told by one of his friend Shri Pawan Sharma, Advocate that he has come to know that in execution proceedings he has to execute the sale-deed in favour of the respondent-plaintiff so also to get it registered as per decree passed against him. The appellant-defendant was shocked and immediately after opening of the courts and taking legal advise, applied for certified copy of the judgment and decree on 13.1.2011, so received by him on 19.1.2011.
4. That on further legal advise, he was suggested to agitate the matter before the learned executing court but could not proceed because of the failure to get proper advise. Later on and ultimately he tried to get legal advise from advocate Shri Pawan Kumar Sharma and then from the counsel at Jodhpur, then he was suggested to contest the matter by filing first appeal even in the adverse
S.B. CIVIL FIRST APPEAL NO.537/2011. Dilip Kumar S/o Mahaveer Prasad Brahmin (Daima) Vs.
Mool Chand S/o Nathmal Saraswast (Brahmin)
Judgment dated 23.02.2015
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circumstances but considering the bonafides of the appellant-defendant at last the matter is decided to be plead and agitated before Hon'ble Rajasthan Court.
5. That in the aforesaid facts and circumstances the appeal itself appears to be barred by limitation by six years but it was never the intent of appellant-defendant to defeat any purpose of law or with any ulterior motive. Immediately after proper advise, the appellantdefendant very bonafidely came before this Hon'ble Court and presented an appeal, thus, the appellant crave liberty to request this Hon'ble Court to condone the delay in filing the aforesaid civil first appeal else the right of property belonging to the appellant-defendant will adversely be affected and the respondentplaintiff will succeeded in obtaining illegitimate benefits in the garb of the judgment and decree in question.”
S.B. CIVIL FIRST APPEAL NO.537/2011. Dilip Kumar S/o Mahaveer Prasad Brahmin (Daima) Vs. Mool Chand S/o Nathmal Saraswast (Brahmin) .. Judgment dated 23.02.2015
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not been explained properly at all. The averment that the appellant came to know about the decree in question only in the execution proceedings through Shri Pawan Kumar Sharma, Advocate, a friend of the appellant, in the month of December, 2010 does not explain the delay of six years at all. 6. Upon perusal of the impugned judgment and decree, it is clear that the decree dated 20.05.2005 was passed against the present appellant-defendant by the learned Trial Court, after hearing the arguments of both the learned counsels for the parties in the matter namely, Shri Anand Balan, for the plaintiff and Shri Pratap Singh Bidawat, for the defendant. It is also noticed that there is nothing on record to show that the learned counsel for the defendant did not inform the present appellant-defendant about the judgment and decree passed against him. The execution is the natural consequence of passing of the decree and the averment that the appellant came to know about the questioned judgment and decree only in the execution proceedings only after five years, in the month of December, 2010 does not inspire any confidence.
S.B. CIVIL FIRST APPEAL NO.537/2011. Dilip Kumar S/o Mahaveer Prasad Brahmin (Daima) Vs. Mool Chand S/o Nathmal Saraswast (Brahmin) .. Judgment dated 23.02.2015
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as regards execution of the agreement to sale dated 18.02.2000 and giving of money in the sum of Rs. 90,000/- to the defendant. This Court is of the view that the defendant was not satisfied with the conclusion arrived at by the learned Trial Court and granting of the decree of specific performance in the present matter, therefore, the present first appeal was filed with a delay of six years but the same does not merit admission. The appeal is clearly and hugely time-barred and the same is liable to be dismissed.
(Dr. VINEET KOTHARI), J.
/ 22 /
/Mohan/
2 issues framed by the court
Whether the delay of six years in filing the first appeal, despite prior knowledge of the decree, can be condoned under Section 5 of the Limitation Act.
Whether the averments regarding misadvice and ignorance justify condonation of such a huge delay.
3 provisions across 2 enactments
DILIP KUMAR S/O MAHAVEER PRASAD BRAHMIN (DAIMA)
MOOL CHAND S/O NATHMAL SARASWAST (BRAHMIN)
VINEET KOTHARI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
