TARA DEVI Vs. KISHAN LAL S/O MAMCHAND

JUDGEMENT

(1.) This writ petition has been filed against the order dated 28.10.2014 whereby application filed under Section 5 of the Limitation Act has been rejected.

(2.) The brief facts giving rise to filing of this petition are that the defendant petitioner filed an application under O.9 R.13 CPC along with an application under Section 5 of the Limitation Act with the contention that the defendant was not having any knowledge of the judgment dated 25.4.2011 until she received the notices on 6.3.2013 and with the advise of the counsel, the application under O. 9 R.13 CPC has been filed along with application under Section 5 and contention in both the applications was that no agreement for specific performance of property was executed, it was only a document for the security of loan and money has been repaid to deceased Kishan Lal on 27.8.2009. Kishan Lal and his son Dinesh all assured her that suit would be disposed of hence the petitioner was in bonafide belief that the suit would be disposed of and had not appeared before the court below. The further contention of the petitioner is that merit ought to have been seen while disposing of the application under Section 5 of the Limitation Act but merit of the original application has not been considered by the court below. The Court has not considered the fact that relief under the Specific Relief Act is only discretionary relief and could not be granted as the agreement was only in the nature of security for the loan and order passed on the application under Section 5 be set aside and limitation be condoned.

(3.) Heard the learned counsel for the petitioner and perused the impugned order as well as the copy of the application under O.9 R.13 CPC.