PUSHPA BAI Vs. SANTOSH KUMAR GUPTA

JUDGEMENT

(1.) An application LA. 98/2012 has been filed to condone the delay in filing the appeal. A decree for specific performance of contract was passed by learned District Judge, Narsinghpur in Civil Suit No. 54-A/1999 on 21-12-2000. This appeal has been filed by defendant on 2-1-2012 and thus, the office has reported this appeal to be barred by 10 years 8 months and 26 days. The contention of learned senior counsel for the appellant is that after the decree of specific performance of contract was passed against defendant/ appellant the brother of the respondent namely, Rattu alias Ratan Lal approached defendant that the matter can be settled amicably out of the Court and the defendant readily accepted the said offer. Thereafter she also paid a sum of Rs. 80,000/- to plaintiff/respondent in that regard and it was settled between the parties that the decree of specific performance will not be executed. Learned senior counsel submits that all of a sudden when a notice to deliver possession was received by the appellant from the Executing Court, thereafter she has filed this first appeal along with application under section 5 of the Limitation Act to condone the delay.

(2.) Learned senior counsel for the appellant submits that during this period the defendant dismantled the house in question and reconstructed it after obtaining loan from two Banks. It has also been put forth that before constructing the house notice was also published in the newspapers that defendant/appellant is taking loan and if anybody is having objection, in writing objections be submitted to her. But, the plaintiff/respondent never objected and therefore, in these facts and circumstances, the delay of 10 years 8 months 26 days be condoned. In support of his contention learned senior counsel has placed heavy reliance upon the decision of Supreme Court in State of Nagaland vs. Lipok Ao and others, 2005 3 SCC 752 and has submitted that the application under section 5 of the Indian Limitation Act should be liberally construed and a pragmatic approach should he adopted by the Court. Thus, it has been prayed that application under section 5 of the Limitation Act be allowed.

(3.) On the other hand, Shri Sanjay K. Agarwal, learned counsel appearing for the respondent/plaintiff by replying the application has submitted that no sufficient; ground is made out to condone the delay in filing the appeal. In reply the averments of appellant made in the application has been emphatically denied. The contention of learned counsel for the respondent is that a decree of specific performance of contract was put to execution well in time in the year 2007. Thereafter, in pursuance to the said decree the sale deed through Court has also been executed, but, no objection was raised before the Executing Court about the plea which now me appellant is setting up to condone the delay. Learned counsel further submits that when the warrant of possession was issued against the appellant, instead of setting up the said plea she took time to vacate the house in question and therefore, all these averments which all are in the air have no bearing and therefore, since the appellant has utterly failed to establish sufficient cause to condone the exorbitant delay of 10 years 8 months and 26 days, this application be dismissed. In support of his contention learned counsel has placed reliance on the decision of Supreme Court Lanka Venkateswarlu (dead) by L.Rs. vs. State of Andhra Pradesh and others, 2011 3 MPLJ 135.