Single bench dismissed a second appeal and condonation application alleging 8.5 years delay due to deceased defendant's unawareness, finding the original party consciously abandoned the appeal, and refused application.
50% court-fees refunded; appeal dismissed.
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.
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[CFA-238/2014]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Civil First Appeal No. 238/2014
Late Shri Richpal son of Shri Dhanpat, resident of Ramgarh, Tehsil Nohar, District Hanumangarh through his legal representatives.
1/1 Kisturi Devi wife of Shri Dhanpat Ram,
1/2 Chawali widow of Late Shri Richpal,
1/3 Rohitash Alias Rohtash son of Late Shri Richpal,
appellant Nos. 1/1 to 1/3 resident of Ramgarh, Tehsil Nohar, District Hanumangarh.
1/4 Sumitra daughter of Late Shri Richpal wife of Late Shri Guljyari Lal, resident of village Ghudsal, Tehsil & District Hisar. 1/5 Guddi daughter of Late Shri Richpal wife of Shri Surendra, resident of village Ghudsal, Tehsil & District Hisar.
----Appellants
Versus
Krishan Kumar son of Shri Hemraj, resident of Ramgarh, Tehsil Nohar, District Hanumangarh.
----Respondent
For Appellant(s) : Mr. G.R. Bhari. For Respondent(s) :
HON'BLE MR. JUSTICE ARUN BHANSALI
Order
02/08/2021
This appeal is directed against the judgment and decree dated 26.04.2005 passed by Additional District Judge, Nohar, District – Hanumangarh, whereby the suit filed by the respondentplaintiff for specific performance of contract has been decreed.
The office has reported that the appeal is barred by 3,307 days i.e. the same has been filed after about 8½ years from passing of the impugned decree.
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[CFA-238/2014]
Alongwith the appeal, application under Section 5 of the Limitation Act has been filed by the appellants-applicants, inter alia indicating that the applicants, who are legal representatives of the original defendant, judgment-debtor became aware of the passing of the impugned decree on receiving the notices in execution, contacted their counsel and, thereafter, rushed to this Court and filed the present appeal.
It is, inter alia, claimed that the applicants have sufficient reasons for seeking condonation of delay and, therefore, the delay be condoned.
Learned counsel for the appellants-applicants made submissions that the decree impugned was passed against father of the appellants-applicants Richpal, who died on 13.10.2013 and the notices in the execution proceedings were received by the applicants on 10.02.2014 when they became aware of passing of the decree and immediately approached the counsel and have filed the present appeal on 16.08.2014.
Submissions have been made that as the applicants were unaware of the passing of the impugned decree and have approached this Court immediately, the delay in filing the appeal may be condoned.
I have considered the submissions made by learned counsel for the appellants and have perused the material available on record.
A bare perusal of the impugned judgment dated 26.04.2005 passed by the trial court would indicate that the suit was filed in the year 2000. The sole defendant – Richpal, son, husband and father of the appellants-applicants, put in appearance, filed written statement, issues were framed, evidence was led by the plaintiff
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[CFA-238/2014]
as well as defendant-Richpal and, thereafter, the judgment was delivered by the trial court on 26.04.2005. Richpal was alive till 13.10.2013 and for more than 8½ year, no appeal was filed by Richpal. It is not the case of the appellants that the defendantRichpal was unaware of passing of the impugned decree.
Once the defendant-Richpal during his life time decided and/or chose not to file appeal against the impugned decree dated 26.04.2005, the mere fact that on account of his death, in pending execution proceedings, the appellants received notices, cannot give them a fresh cause, so as to revive an otherwise dead and abandoned cause during the life time of their son, husband and father.
Things would have been different in case the decree was passed ex-parte, then it could have been assumed that even the original defendant may have been unaware of the impugned decree and ultimately the legal representatives coming to know of execution, have filed the appeal.
Present is a case where the deceased was aware of passing of the impugned decree, who chose not to file appeal and, therefore, merely because in execution proceedings, the appellants have received notices, cannot give them a fresh cause to question the decree by filing the appeal.
In view thereof, no case for condoning the delay of over 8½ years is made out. This is besides the fact that despite filing of the appeal in the year 2014, the legal representatives for the first time made submissions before the Court, on 05.04.2021 i.e. after seven years of filing of the appeal, which also shows their apparent disinclination.
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[CFA-238/2014]
In view of the above discussion, the application filed by the appellants under Section 5 of the Limitation Act is dismissed and, consequently, the appeal is also dismissed as barred by limitation.
As the appeal has been dismissed as barred by limitation, 50% of the court-fees under Section 61 of the Rajasthan Court Fees and Suits Valuation Act, 1961 be refunded back to the appellants-applicants. Certificate in this regard be issued by the Registry to the appellants/counsel for the appellants.
(ARUN BHANSALI),J
41-PKS/-
3 issues framed by the court
Whether the applications for condonation of over 8½ years delay under Section 5 of the Limitation Act succeed when the judgment-debtor was alive and aware of the decree but did not appeal.
Whether receiving execution notices after the original defendant's death revives an abandoned cause of action to file a second appeal.
Whether the appellants demonstrated sufficient interest to merit condonation of substantial delay in filing the appeal.
2 provisions across 2 enactments
1/1 Kisturi Devi; 1/2 Chawali; 1/3 Rohitash; 1/4 Sumitra; 1/5 Guddi
Krishan Kumar
Arun Bhansali
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
