MADAN CHAND AND OTHERS Vs. MAHANTH AND OTHERS

JUDGEMENT

(1.) Heard counsel for the petitioners and Sri C.P. Mishra appearing on behalf of the plaintiff respondents. With their consent, this petition is being decided finally, without inviting a counter affidavit.

(2.) It transpires from the record that Original Suit No. 40 of 1980 was instituted by one Lakhan (who had since died and is now represented by plaintiff respondents) for specific performance of an agreement for sale dated 25 Jan. 1978 allegedly executed by Bachcha Lal (Defendant No. 1) in his favour. Defendant Nos. 2 & 3 are his sons and daughter-in-law. They contested the suit by filing separate written statements. The execution of the agreement for sale was denied. It was alleged that defendant No. 2 (Saroj Devi) was the owner of the property and defendant No. 1 Bachcha Lal was not competent to execute any agreement for sale. During the pendency of the suit, Saroj Devi (Defendant No. 2) executed registered sale deeds dated 18 June 1997 and 12 April 2001 with respect to the suit property, in favour of Mohan, father of the petitioners herein. She therefore seems to have lost interest in the suit, resulting in ex parte decree dated 15 March 2003. It is alleged that father of the petitioners, on coming to know of the ex parte decree filed an application for setting aside the ex parte decree, along with a delay condonation application. It was registered as Misc. Case No. 119 of 2003. The restoration application was opposed by the heirs of plaintiff respondents by filing objections to the effect that the sale deeds in question were hit by Sec. 52 of the Transfer of Property Act, 1882. The execution of the sale deeds was not denied. The trial Court by order dated 7 May 2010 rejected the restoration application holding that father of the petitioners being not a party to the suit, the application at his2 instance was not maintainable. Aggrieved by the said order, the father of the petitioners filed an appeal, which was registered as Misc. Appeal No. 31 of 2011. During pendency of the appeal, the father of the petitioners died and they were substituted in his place. The Appellate Court relying on a judgment of the Supreme Court in the case of Raj Kumar Vs. Sardari Lal, 2004 (2) JCLR 121 (SC) , by order dated 24 March 2015 held that the application at the instance of the father of the petitioners, who is an assignee pendentilite, is maintainable. However, the appeal has been dismissed on the ground that along with his application, the father of the petitioners have not filed the certified copy of the sale deeds, on the basis of which he claimed himself to be the assignee from respondent No. 3 (Saroj Devi).

(3.) Learned counsel for the petitioners submitted that the execution of the sale deed by Saroj Devi in favour of Mohan, the father of the petitioners was not in dispute. Even in the objections filed by the plaintiff respondents against the application for setting aside the ex parte decree, it had not been their case that the sale deeds were not executed by Saroj Devi. It is further pointed out that Lakhan, the original plaintiff of the suit, was very well aware of the sale deed dated 18 June 1997 executed by Saroj Devi in favour of the father of the petitioners. He had even filed the Original Suit No. 272 of 2000 for cancellation of the sale deed dated 18 June 1997 executed by Saroj Devi in favour of the father of the petitioners. Copy of the plaint of Original Suit No. 292 of 2000 was also filed in appeal.