SURESH MAHALDAR Vs. MAHADEO MAHALDAR

JUDGEMENT

(1.) Heard Mr. Ashok Kumar, learned counsel appearing on behalf of the petitioner and Dr. Manoj Kumar, learned counsel appearing for the opposite party. This Civil Revision application is directed against the order dated 8.5.2007 passed in Title Appeal No. 66 of 2006, whereby the learned District Judge, Bhagalpur has been pleased to dismiss the appeal of the petitioner holding the same as barred by limitation.

(2.) The suit in question was filed by the plaintiff-opposite party for specific performance of contract. The suit was decided ex parte. Although the defendant-petitioner appeared in the suit and also filed a written statement but he thereafter did not pursue the same and the suit was decreed ex parte in favour of the plaintiff-opposite party with a direction to the defendant-petitioner to execute a sale deed and on his failure to do so the same was to be executed through the process of the Court. It is when the decree was levied for execution that summons was served upon the defendant-petitioner and he became aware of the judgment and decree after inspection of records and upon obtaining the certified copy of the judgment and decree the appeal was filed together with an application under Section 5 of the Limitation Act, 1963 for condonation of delay. The learned court below by the order impugned has rejected the petition filed for condonation of delay, inter alia, on grounds of no sufficient explanation having been provided by the petitioner for the delay and as a consequence of the dismissal of the application filed for condonation of delay, the appeal itself was dismissed as time barred.

(3.) Mr. Ashok Kumar, learned counsel appearing on behalf of the petitioner has submitted that the petitioner had been misled by the pairvikar who informed him that the suit stood dismissed. It is the case of the petitioner that upon such information being received, the petitioner who is a labourer left the pairvi of the matter and it is only after he received the summons in the Execution Case No. 12 of 2004 levied by the decree holder-opposite party for execution of the judgment and decree passed in Title Suit that he became aware of the outcome of the suit. It is stated that after fathering the knowledge of the same on 2.6.2006 he applied for certified copy of the judgment and decree on 4.4.2006 and whereafter the appeal after being drafted, was filed together with an application under Section 5 of the Limitation Act with a prayer to condone the delay and to dispose of the appeal on merits. The prayer of the petitioner not finding favour with the lower appellate court, hence the Civil Revision application.