A.C. FRANCIS Vs. B.K. SURENDRAKUMAR

JUDGEMENT

(1.) First defendant's second appeal aggrieved by the judgment and decree of the Trial Court allowing O.S. No. 72 of 2004 instituted by the respondent directing specific performance of an agreement of sale and the judgment and decree of the lower Appellate Court dismissing R.A. No. 24 of 2010 as a consequence of rejecting I.A. No. 1 to condone the delay of 832 days in filing the appeal. Respondent 1 instituted O.S. No. 72 of 2004 on 12-4-2004 before the Civil judge (Senior Division), Harihar for specific performance of the agreement of sale executed jointly by the defendants, agreeing to convey the suit schedule property for a valuable consideration on acknowledging receipt of part sale consideration. That suit when resisted by the appellant (since deceased during the pendency of this appeal represented by legal heirs) arraigned as defendant 1 and the second respondent none other than the son of the 1st defendant as defendant 2, by filing written statement, the Trial Court framed issues and the parties entered trial whence oral testimony was recorded from 21-3-2007 onwards. There afterwards the Trial Court in the premise of the pleadings, the evidence both oral and documentary, answered the issues and accordingly allowed the suit by judgment and decree dated 30-10-2007 directing the plaintiff to discharge the loan outstanding with M/s. LIC Housing Finance Limited, Mangalore and balance, sale consideration, if any, to pay to the defendants who are in turn were directed to execute and register the sale deed in favour of the plaintiff and put him in possession of the suit schedule property failing which the plaintiff was reserved liberty to have the sale deed executed through a Court Commissioner and on securing execution of sale deed to put him in possession of the suit property.

(2.) The first respondent sued execution of the judgment and decree, in Execution Case No. 46 of 2007 on 10-12-2007 arraigning the defendants as judgment-debtors, whence the 1st J.D.R./appellants on notice, entered appearance through Counsel on 10-1-2008 and on 23-2-2008 filed objections stating that he would handover vacant possession of the suit schedule property within six months and execute the sale deed and that the decree-holder-plaintiff be directed to pay the balance sale consideration to him to the exclusion of his son the 2nd defendant/2nd judgment-debtor. The appellant-J.D.R. filed an affidavit dated 13-9-2010, undertaking to vacate the Suit Schedule Premises within 15 days as he had to shift the household articles and once again on 14-9-2010 filed another affidavit to the same effect. The failure to comply with the aforestated undertaking led to the Executing Court appointing a Commissioner to execute a sale deed which was registered on 2-6-2010.

(3.) The 1st judgment-debtor/1st defendant filed R.A. No. 24 of 2010 together with I.A. No. 1 under Section 5 of the Limitation Act, 1963 on 10-3-2010 to condone the delay of 832 days in filing the appeal, In the affidavit accompanying the application, it was stated on oath, that due to ignorance, old age, lack of knowledge and having not approached any lawyers for advise, did not prefer the appeal within the period of limitation though he suffered an order in Execution No. 46 of 2007 of the Executing Court to execute the sale deed on 15-2-2010. In addition it was stated that the order issuing delivery warrant by the Executing Court when carried in W.P. No. 30402 of 2010 by 1st judgment-debtor, this Court disposed off the petition with a direction to the lower Appellate Court to dispose of the application for stay within three weeks from the date of the said order. There afterwards the 1st judgment-debtor was examined as P.W. 1 and P.W. 7-documents marked as Exs. P. 1 to P. 7 on I.A. No. 1 for condonation of delay though the 1st judgment-debtor sought time to examine the doctor who treated him, nevertheless did not secure the presence of the witness and in the light of the time frame fixed by this Court for disposal of the application, the lower Appellate Court having considered the material on record declined to accept the explanation as sufficient cause for the inordinate delay and rejected the application and sequentially dismissed the appeal by judgment and decree dated 10-11-2010.