CHARANJIT LAL MALHOTRA Vs. RAJ KUMARI SUD

JUDGEMENT

(1.) -In a suit for specific performance of an agreement to sell the property in controv- ersy and for damages instituted by Shri Charanjit Lal Malhotra against Dr. Prithi Singh, the learned Commercial Subordinate Judge, Delhi, on 27th February, 1965 made a decree in favour of the plaintiff for specific performance of the agreement to sell in the following terms :-

(2.) The plaintiff presented in this Court. Regular First Appeal No. 120 of 1965 on 12th July, 1965. The Office returned this appeal with the remark that certified copy of the decree-sheet duly stamped should be filed. The appeal was refiled on 17th july, 1965 with the certified copy of the decree and it was noted by the counsel for the appellant that the copy was ready on 15th Julv, 1965 and was taken delivery of on 17th July, 1965. An application for condonation of the delay under Section 5 of the Limitation Act, it was pointed our, had already been filed. An application dated 10th July, 1965, but filed in Court on 13th July, 1965 under section 5 of the Limitation Act read with Section 151, Civil P.C. contains reasons for condoning the delay in paragraphs 3 to 6. It is averred therein that the appellant had been misled by the operative portion of the judgment and thought that the decree for specific performance was conditional on the permission being available from the appropriate authority and it the permission was refused, then the appellant was only entitled to Rs. 5.000.00 with proportionate costs. On this view, the appellant remained under the impression that the decree sheet would be drawn up only when the permission of the appropriate authority was granted or refused. As a result of this impression, the appellant only applied for a certified copy of the judgment on 16th April, 11565, without applying for a copy of the decree. The appellant deposited the requisite amount in Court in accordance with its directions. In the meantime, however, Dr. Prithi Singh judgment debtor died and ths appellant became uncertain as to who was to specifically perform the agreement. Faced with this situation the appellant filed an application under Order XXll, Rule 4, Civil P. C., for impleading the heirs ot the judgment-debtor, which application is still pending in the trial Court, though it is conceded in the application that after the conclusion of the suit, it is unnecessary to file an application for impleading the heirs and successors of the judgment debtor. On. Dr. Prithi Singh's death, it drawned upon the appellant that in case the decree for specific performance be not capable of being implemented, he would still be entitled to damages which had not been awarded by the trial Court. He, therefore, considered it necessary to appeal from the decree In the meantime, however, the civil Courts were closed and the petitioner was prevented from applying for the certified copy of the decree. The petitioner approached the acting District Judge, Delhi, during the vacation for being supplied with the necessary certified copy, but the Clerk of the Court of the Commercial Subordinate Judge, In whose custody the file of the case was, was also on leave due to the summer vacation. The petitioner than averred that on the re-opening of the civil Courts on 14th July, 1965. he would be able to obtain a certified copy and file the same in this Court. The appeal, it may be pointed out, was accordingly presented only with a certified copy of the judgment and without that of the decree.

(3.) Dulat, J, of the Punjab High Court, sitting on Circuit, on 9th August 1965, issued notice to the opposite party of the application under section 6 of the Limitation Act (C. Misc. 2344-D of '1935). From the record, I find that a certified copy of the decree dated 27th February, 1965 was applied for on 8th July, 1905 and was reads on 35th July, 1965. C.Misc. 2344-D of 1965 was set down for hearing before S. B. Capoor and Khanna JJ. on 27th July, 1966, but was adjourned on request by Miss C. M. Kohli, Advocate, to the effect that Shri G. R. Chopra, counsel for the appellant, had gone out of India. Shri G R. Chopra appeared before the same Bench on 9th August, 1966 and offered to file certified copies of the amended Judgment and decree vide order of Miss S. Mehta, Commercial Subordinate Judge, dated 28th May, 1966 and prayed that the disposal of the miscellaneous application under section 5, Limitation Act, be in the circumstances held over. In October, 1965, the appellant filed an application under Order V Rule 20, Civil P. C., for serving the unserved respondents by substituted service (C. Misc 3759-D of 1965). It appears that this petition was allowed by a learned Single Judge of the Punjab High Court Thereafter it seems that bymeans of an application under Order 1, Rule 10, and section 151, Civil P. C. IC, Misc (05-D/65) the appellant prayed that Smt. Santosh Devi and Miss Shanta Sud be also impleaded as respondents and served through substituted service in the manner directed by Bedi, J. in C. Misc. 3759-D of 1965. According to the appellant, S K. Kapar, J allowed this application and the notice was published in the Daily Tej" in April, 1966. On 16th January, 1968, the three miscellaneous petitions were set down for hearing before one of us when the records were sent for and notice of C. Misc. No 2344-D of 1965 was also directed to go to the respondent , After several adjounrments, the matter has finally been argued before us and now we are required to pronounce on the question whether the regular first appeal is within limitation, and if not, whether there is sufficient ground for condoning the delay.