Harish Dharamdas Mewani And Ors vs Ravinder Kaur Harvindersingh ...
2021 Latest Caselaw 16625 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD


                       920 SECOND APPEAL NO.449 OF 2021
                       WITH CA/11665/2021 IN SA/449/2021


                     HARISH DHARAMDAS MEWANI AND ORS.
                                        VERSUS
              RAVINDER KAUR HARVINDERSINGH NIRH AND ORS.
                                           ...
                        Mr. S.H. Jagiasi, Advocate for appellants
                                           ...

                                    CORAM :      SMT. VIBHA KANKANWADI, J.

                                    DATE :       01st DECEMBER, 2021


PER COURT :



1              Present appeal has been filed by the original defendants

challenging the Judgment and order passed in Civil Miscellaneous

Application No.177/2017 by learned Adhoc District Judge-1, Aurangabad on

21.08.2021, thereby rejecting the application under Section 5 of the

Limitation Act for condonation of delay of 472 days in filing appeal filed by

the present appellants.

2 Heard learned Advocate Mr. S.H. Jagiasi for appellants.

3              Present respondents are the original plaintiffs, who had filed





                                         2                                     SA_449_2021

Regular Civil Suit No.801/2012 (Old Regular Civil Suit No.182/2007) before

12th Joint Civil Judge Junior Division, Aurangabad for specific performance of

the contract and perpetual injunction. The said suit came to be decreed on

30.01.2016. As aforesaid, the present appellants-original defendants

intended to file the First Appeal, however, there was delay, therefore, they

had filed the application for condonation of delay of 472 days caused in filing

appeal and it is rejected. Hence, this Second Appeal.

4 The Judgment of the learned Trial Judge would show that the

defendants had filed their written statement and thereafter it appears that

they did not appear in the matter and, therefore, the matter could be

proceeded only on the basis of the evidence led by plaintiffs. Now, before the

First Appellate Court the applicants had examined themselves and submitted

that their Advocate had not informed about the next dates to them and,

therefore, they did not remain present. The First Appellate Court has

disbelieved them, on the ground that the acknowledgment receipts of the

notice sent by Advocate were on record of the Trial Court. The certified copy

of the pursis filed by Advocate representing the present appellants before the

Trial Court stating that he has no instructions and he had complied with his

professional duty appears to have been considered by the First Appellate

Court. Whether the said evidence led by the applicants has been properly

3 SA_449_2021

appreciated or not, is required to be considered here, in view of the fact that

by entering into the witness box the applicants-present appellants had denied

to have received the notice by their Advocate to them.

5 Another fact that has been pointed out is that after passing of the

decree by the Lower Court, the decree has been executed and the sale deed

has been got executed through Court. However, the plaintiffs had never filed

execution proceedings and no notice was given either by the plaintiffs in view

of the decree or by the Court before taking the process of asking ex officials

to execute the sale deed was ever issued. Affidavit has been filed by

appellant No.1 on 26.11.2021 before this Court. Now, whether this

procedure adopted by the Trial Court/Executing Court needs to be considered

on the touch stone of the legal provisions. Therefore, even though as on

today the decree is stated to have been executed in a way that the sale deed

has been got executed; yet the substantial questions of law, as contemplated

under Section 100 of the Code of Civil Procedure, are arises in this case,

requiring admission of the Second Appeal. Hence, Second Appeal stands

admitted. Following are the substantial questions of law.

1 Whether decree passed in a suit for specific performance of contract can be executed without following the procedure laid down in Order XXI Rule 10 of the Code of Civil Procedure, 1908 ?

                                          4                                       SA_449_2021



          2        Whether the First Appellate Court was justified in

rejecting the application for condonation of delay inspite of noticing that the decree has been got executed without following the procedure laid down in the Code of Civil Procedure, 1908 ?

3 Whether case was made out by the appellants to condone the delay caused in filing First Appeal ? If yes, whether matter deserves remand ?

6 Issue notice to the respondents and also to the added

respondents, in view of Civil Application No.11665 of 2021, returnable on

10.01.2022.

7                Call Record and Proceedings.




                                                ( Smt. Vibha Kankanwadi, J. )




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