BOSE AND OTHERS Vs. JYOTHI AND OTHERS

JUDGEMENT

(1.) The appellants are the legal heirs of the deceased first defendant in O.S.No.151 of 2009 on the file of the Court of Subordinate Judge of Kochi, a suit instituted by the first respondent herein for specific performance of Ext.A1 agreement. In the suit as filed, the first respondent/plaintiff had joined Kunjunni, the predecessor of the appellants herein as the first defendant and Thankappan, the predecessor of respondents 2 to 6 herein as the 2nd defendant. The subject matter of the suit for specific performance is a parcel of land, 6 1/2 cents in extent, 5 cents out of which belongs to the first defendant and the balance to the second defendant.

(2.) Though summons was served, the first defendant alone entered appearance and filed a written statement resisting the suit. The 2nd defendant who did not appear was set ex parte even in the initial stage. Though the first defendant had, in the written statement filed by him, admitted the execution of Ext.A1 agreement, he denied payment of the sum of Rs. 3,00,000/- on 20.03.2009. He also denied the endorsement alleged to have been made on the original of the agreement on that day. He contended that the endorsement, if any, is a fabricated one and that, after the agreement was entered into on 18.12.2008, the plaintiff had never approached him. He contended that he had received only the sum of Rs. 1,50,000/- as advance sale consideration from the plaintiff and that after deducting the sum of Rs. 75,000/- stipulated as penalty for breach of the agreement, he is liable only for the balance sum of Rs. 75,000/-.

(3.) O.S.No.151 of 2009 stood listed for trial on 25.03.2010. On that day, the first defendant was absent. He was set ex parte and five days later, namely on 30.03.2010, the trial court passed a decree for specific performance and directed the defendant to execute a sale deed in favour of the plaintiff within a period of one month. After the decree was passed, the 2nd defendant passed away on 09.05.2010 and the first defendant passed away on 15.08.2010. The plaintiff thereupon sought to execute the decree by impleading the legal heirs of defendants 1 and 2. Upon receipt of notice in the execution petition, the legal heirs of the first defendant filed I.A.Nos.1202 of 2013 and 1203 of 2013 in O.S.No.151 of 2009, the former praying for condoning the delay of 1220 days in filing I.A.No.1203 of 2013 wherein the prayer was to set aside the ex parte decree passed on 30.03.2010. They contended that they came to know of the ex parte decree passed in the suit only when they received notice in the execution petition. They also contended that the counsel for the first defendant was not aware of the fact that the suit stood listed for trial on 30.03.2010. The plaintiff opposed the applications. After considering the rival contentions, the learned trial Judge dismissed I.A.Nos.1202 of 2013 by order passed on 21.01.2013 holding that sufficient reason has not been shown to condone the delay. Consequently I.A.No.1203 of 2013 filed for setting aside the ex parte decree was dismissed as barred by limitation. The said orders are under challenge in this appeal.