SURESH KUMAR Vs. PRABHANSHU

JUDGEMENT

(1.) This second appeal is filed feeling aggrieved by the judgment and decree dtd. 29/08/2022 passed in Civil Appeal no. 15 of 2019 by the 2nd District Judge, Bagli, District - Dewas, whereby the judgment dtd. 06/09/2019 passed in Civil Suit no. 05-A of 2019 was set aside and a decree for specific performance of contract was granted in favour of the respondent Prabhanshu. The memo of second appeal was presented on 15/04/2025 after delay of 865 days.

(2.) The appellant has filed application i.e. I.A. no. 3493 of 2025 under Sec. 5 of the Limitation Act requesting for condonation of delay of 865 days in filing of present second appeal. It is stated in the application that the appellant could not appear before the trial Court, however, the trial Court, after proceeding ex-parte against the appellant/ defendant, rejected the civil suit for specific performance of contract filed by respondent / plaintiff Prabhanshu. Respondent / plaintiff Prabhanshu preferred an appeal, which was allowed, but his counsel before the first Appellate Court did not inform him about the grant of decree by the first Appellate Court on 29/08/2022. The appellant was not aware of the judgment and decree passed against him by the First Appellate Court. He got notice from the Executing Court in Execution Case no. 03/20-23, thereafter, he contacted his counsel and preferred present second appeal before this Court.

(3.) Learned counsel for the appellant, in addition to the grounds mentioned in the application, contends that the counsel for the appellant / defendant Suresh Kumar representing him before the first Appellate Court did not inform him the outcome of the appeal, therefore, the appellant Suresh Kumar was not aware of the decree passed against him. Learned counsel further submits that despite passing of the decree for specific performance of contract, respondent Prabhanshu did not deposit the amount of consideration, therefore, the decree for specific performance was not executable. Learned Executing Court did not consider this aspect and executed a sale deed in favour of the decree holder Prabhanshu. When the appellant came to know about issuance of warrant for possession, he has approached this Court. The appellant will suffer irreparable loss, if the delay in filing present appeal is not condoned. The appellant desires to prosecute this appeal on merit, therefore, the delay of 850 days in filing of present appeal be condoned. The appeal deserves to be heard on merits.