[Cites 3, Cited by 0]
Uttarakhand High Court
FA/5/2025 on 12 December, 2025
Author: Rakesh Thapliyal
Bench: Rakesh Thapliyal
SL. Office Notes,
No. Date reports,
orders or COURT'S OR JUDGE'S ORDERS
proceedings
or directions
and
Registrar's
order with
Signatures
FA No. 5 of 2025
Hon'ble Rakesh Thapliyal, J.
1. Mr. Piyush Garg, learned counsel for
the appellants.
2. Mr. Siddhartha Singh, learned
counsel for the respondent.
3. The respondent no. 1/plaintiff Ashish
Mohan Aggarwal filed a suit being OS No.
134 of 2018 for specific performance
against respondent no. 2 Mahesh Kumar
Prajapati (now deceased) and defendant
no. 2 never put appearance before the
Trial Court and Trial Court passed an order
to proceed ex-parte, and, ultimately
decreed the suit filed by the respondent/
plaintiff ex-parte on 23.08.2019. During
the pendency of the suit, defendant
Mahesh Kumar Prajapati (now deceased)
executed a registered will in favour of the
appellants herein on 07.08.2019.
Thereafter on 10.10.2019, the
defendant/respondent Mukesh Kumar
Prajapati (now deceased) filed an
application under Order 9 Rule 13 of CPC
for recalling the ex-parte judgment and
decree dated 23.08.2019 which was
dismissed on 01.08.2024 against which an
appeal bearing AO No. 418 of 2024 was
filed wherein statement was made by the
plaintiffs that they will not proceed with
the execution. During this period, Ashish
Mohan Aggarwal filed another suit bearing
suit no. 22 of 2022 challenging the sale
deed executed by respondent Mukesh
Kumar Prajapati (now deceased) in favour
of the appellants herein wherein the
appellants who were defendants in the
said suit filed their written statements on
30.07.2022. Simultaneously, respondent/
plaintiff initiated execution proceedings by
way of Execution Case No. 3 of 2020
wherein on 03.10.2024 the appellant
herein also impleaded as judgment debtor.
Subsequent thereto AO No. 418 of 2024
was dismissed on 25.09.2025.
4. Now, the present appellants herein
who were arrayed as judgment debtor in
the execution proceedings preferred
instant appeal against ex-parte judgment
and decree dated 23.08.2019 passed in
O.S.No. 134 of 2018.
5. As per the office report, there is a
delay of 793 days and while computing
this period, the covid period was also
excluded.
6. Mr. Siddhartha Singh, learned
counsel who appears for the
respondent/plaintiff submits that the delay
in preferring the instant appeal is not bona
fide since the appellant got knowledge
about ex-parte judgment and decree
dated 23.08.2019, in the year 2022 when
O.S. No. 22 of 2022 was filed wherein
appellants herein filed written statement
on 30.07.2022. Apart from this he submits
that the appellants herein cannot be
presumed to be bona fide purchasers in
terms of Section 3 of Transfer of Property
Act.
7. In response to this Mr. Piyush Garg
who appears for the appellants submits
that on two accounts the delay is liable to
be condoned, firstly AO No. 418 of 2024
preferred against the order rejecting
application under Order 9 Rule 13 CPC was
finally dismissed on 25.09.2025 and
subsequently the appellants herein first
time arrayed as judgment debtor in the
execution proceeding on 03.10.2024,
therefore, the delay, if any, in preferring
the appeal is only due to lack of
knowledge of ex-parte judgment and
decree since cause of action accrues when
the appellants herein arrayed as judgment
debtor in execution proceeding on
03.10.2024.
8. Mr. Singh submits that even
otherwise as per Limitation Act the delay
has to be computed from the date of ex-
parte judgment and decree i.e 28.03.2019
and, as such, there is delay of 1900 days
in preferring the instant appeal and note
of the registry is not correct.
9. Let Registry may examine the delay
since admittedly the instant appeal has
been preferred against the ex-parte
judgment and decree dated 23.08.2019
and place the report before this Court by
17.12.2025.
10. Put up this matter on 17.12.2025.
(Rakesh Thapliyal, J.)
12.12.2025
Parul
