BINIYABAI Vs. SIKANDAR KHAN

JUDGEMENT

(1.) SHOULD the procedural ponderables and technical troublers, such as plea of bar of limitation, be permitted to obstruct the path of justice and defeat rightful claims even though the law, justice and equity all demand the otherwise, is a question to be answered in this order. Indeed they are applications under Order 22, Rule 4, read with Rule 9, of the Civil Procedure Code and Section 5 of the Limitation Act coming up for disposal in bit little peculiar facts and circumstances to be noticed hereinafter.

(2.) THE plaintiff, a widow lady in her fiftees, knocked the doors of this Court in the year 1970, raising a substantial grievance of having been deprived of her bread and butter by the defendant having succeeded in coaxing her into executing a deed of sale, adjudged by this Court vide its judgment dated 12 -8 1991 to be fictitious document. It is notable that one -half share in 37 Bighas and 16 Biswas of agricultural land in district of Vidisha, where the land is valuable, was outwardly parted with for a paltry amount of Rs. 800/ -recited as consideration in the purported deed of sale. The plaintiff had lost from the two courts below. This Court vide its judgment dated 12 -8 -1991 allowed the appeal, decreeing the suit, declaring the sale -deed to be a fictitious and nominal deed of sale, not binding on the plaintiff, leaving liberty open to the defendant to seek return of the amount of loan advanced by him to the plaintiff.

(3.) ON 1 -2 -1992 one Mohammed Mustafa moved an application inviting the attention of the Court to the fact that Sikandar Khan, the sole respondent in S. A. No. 53/79 had expired on 11 -8 -1988 and inasmuch as the appeal was heard and decided without the legal representatives having been brought on record, the judgment was a nullity, liable to be recalled, and the appeal deserved a dismissal as abated. The factum of death was not disputed by the appellant Biniyabai on being noticed. On 17 -10 -1992 this Court, as duty bound, annulled its judgment and decree dated 12 -8 -1991, directing the appeal to be relisted for hearing. These were the proceedings in M.C.C. No. 54/92.