SANTOKBEN GOPILAL MAVER Vs. MASS FINANCIAL SERVICES LTD

JUDGEMENT

(1.) The present Civil Application is filed by the applicant, who is claiming to be third party, under Section 5 of the Limitation Act for condonation of delay of 3327 days caused in filing aforesaid First Appeal on the grounds stated in the application. It is stated that the opponent no.1 had filed Summary Suit against the opponent nos.2, 3 and 4, wherein decree came to be drawn on 11.03.2004 and, thereafter, public notice was issued in October, 2012. It is also stated that the applicant has received notice through the Hon'ble Court and, therefore the applicant came to know about the suit proceeding and moved an application as stated in the application under Order 21 of the Civil Procedure Code. It is also stated that the applicant also filed Civil Suit No.2774/2012 against the opponent nos.1, 2 and 4 and also Police complaint.

(2.) Heard learned advocate, Shri Mrudul Barot for the applicant.

(3.) Learned advocate, Shri Barot referred to the papers and tried to submit that the applicant is a onafide purchaser and being a third party, when it came to the notice in the year 2012, the applicant took necessary steps and also filed suit as well as the complaint and other proceedings. Therefore it has been stated that when the impugned order came to be passed, same has been challenged by way of aforesaid Second Appeal and, therefore, delay may be condoned. He has also submitted that the respondent nos.3 and 4 had mortgaged the property without knowledge of the applicant and they have executed registered sale deed in favour of the applicant and, therefore, the applicant is a bonafide purchaser. It is submitted that the mortgage, which was created by the respondent nos.3 and 4, is not registered mortgaged as required under section 17 of the Registration Act and, therefore, same may not be considered as valid. Learned advocate, Shri Barot referred to and relied upon the judgment of the Hon'ble Apex Court in case of Haribhai Lakhubhai Seedhav v. State of Gujarat, reported in 2010 (2) GLH 97 to support his submission that when it came to know about the notice, in similar circumstances it was permitted to file Letters Patent Appeal seeking leave after a delay of ten years. He has therefore tried to submit that the present application for condonation of delay may be considered.