JAYRAM Vs. SANT RAMDEENDAS

JUDGEMENT

(1.) Appellants, the legal heirs of original-defendant Jay Ram, have preferred this first appeal to assail ex-parte judgment and decree dated 29th of May 2015, passed by District Judge, Jodhpur (for short, 'learned trial Court'). By the impugned judgment and decree, learned trial Court has decreed the suit of respondent-plaintiffs for specific performance of contract and perpetual injunction.

(2.) The appeal is filed after delay of 1236 days, and therefore, on behalf of appellants, an endeavour is made for seeking condonation of delay. In order to wriggle out from delay, an application under Sec. 5 of the Limitation Act is filed, duly supported by affidavit of Dharmaram as well as death certificate of original-defendant Jayram. Spelling out reasons of delayed presentation of appeal, it is, inter alia, averred in the application that at the threshold learned trial Court passed ex-parte order on 29th of March, 2013 due to the absence of lawyer representing the cause of original-defendant Jayram. It is further averred that the counsel before withdrawing the case did not inform Jayram. Absence of lawyer, as per the version of appellants, led to continuance of trial in the suit without any defence of original-defendant and finally the suit was decreed on 29th of May, 2019. It is also incorporated in the application that during pendency of the suit, original-defendant Jayram remained bedridden for almost two years and finally took his last breath on 21st of October, 2015 after prolonged illness. For substantiating factum of death of original-defendant Jayram, his death certificate is also placed on record.

(3.) The appellants have also pleaded that they came to know about ex-parte judgment and decree when notices under Order XXI Rule 2 CPC were served on them indicating next date of hearing as 21st of January, 2017. In response to the notice, as per appellants, a counsel was engaged who submitted Vakalatnama before the learned executing Court and it revealed that the decree sought to be executed against them was passed ex-parte on 29th of May, 2015, and therefore, at their behest, endeavour was made for obtaining certified copy of the judgment and decree and finally same was delivered to them on 1st of February, 2017.