HOTAPPA TIMMARAJ TIMMARAYAN Vs. KISHOR KISANRAO JEJURKAR

JUDGEMENT

(1.) Heard learned Advocate Mr. A.N. Irpatgire for appellants and learned Advocate Mr. S.B. Narwade for the sole respondent.

(2.) Present appellants are the original defendants, who want to challenge the Judgment and order passed in Civil Miscellaneous Application No.299/2019 by learned District Judge-3, Ahmednagar, by which their application under Section 5 of the Limitation Act for condoning the delay came to be rejected on 30.07.2021. It appears that the present appellants intend to challenge the ex parte Judgment and Decree passed against them by the learned Civil Judge Senior Division, Ahmednagar in Special Civil Suit No.26/2017 on 11.01.2019, thereby decreeing the suit filed for specific performance of the contract in this Second Appeal.

(3.) It has been vehemently submitted on behalf of the appellants that the First Appellate Court has not considered the facts and circumstances of the case properly. The appellants had contended that they were not served with the summons of the suit before the First Appellate Court and, therefore, they were not aware about the decree that was passed. They came to know about the said decree when they received the summons of the execution proceedings around 07.06.2019. Thereafter, they had applied for the certified copies and came to know about the ex parte decree. They received the certified copies on 09.07.2019 and thereafter it is contention of the appellants that they had met the respondent and there were compromise talks. It was also informed to them through Mediator that the matter has been amicably settled out of Court. However, the respondent gave draft sale deed before the executing Court and then they realized that respondent is not intending to abide by the settlement and, therefore, there is delay in filing the appeal. The said delay was unintentional. The learned First Appellate Court has taken the evidence of the parties. The applicant No.2 has examined herself and the respondent filed certain documentary evidence in the form of summons of the Trial Court and also examined the Bailiff OW 1 Navnath Bhanudas Gore. The First Appellate Court has wrongly concluded that the appellants were duly served with the summons in the suit and they have not explained the delay properly and thereby the application for condonation of delay was rejected. It is to be noted that the delay was of 209 days and according to the applicants-appellants, it was properly and sufficiently explained. Under such circumstance, the substantial questions of law are arising in this case.