Mahipal Singh And Another vs Tej Pal And Others on 10 November, 2009

      IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                     CHANDIGARH.

                                                     C.R. No. 3532 of 2009
                                         DATE OF DECISION : 10.11.2009

Mahipal Singh and another

                                                           .... PETITIONERS

                                  Versus

Tej Pal and others

                                                      ..... RESPONDENTS


CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL


Present:    Mr. N.D. Achint, Advocate,
            for the petitioners.

                        ***

SATISH KUMAR MITTAL , J.

The defendants have filed the instant revision petition under

Article 227 of the Constitution of India for setting aside the order dated

23.3.2009, passed by Additional District Judge, Gurgaon, whereby their

application under Section 5 of the Limitation Act, 1963 for condoning the

delay of 402 days in filing the first appeal against the judgment and decree

dated 28.7.2005 passed against them, has been dismissed.

I have heard learned counsel for the petitioners and have gone

through the impugned order.

Undisputedly, the suit for declaration with consequential relief

of permanent injunction filed by the plaintiffs-respondents No.1 and 2 was

decreed by the trial court on 28.7.2005, whereas the defendants-petitioners
CR No. 3532 of 2009 -2-

filed appeal before the first appellate court on 6.10.2006 i.e. after a delay of

402 days. In the application for condonation of delay, it was pleaded that the

defendants-petitioners were not aware of the judgment and decree dated

28.7.2005, passed against them, as their counsel did not inform them about

the same. It has been stated that they came to know about said decision only

on 17.9.2006 in the village from the plaintiffs-respondents, where they were

declaring that they have won the case. This plea taken by the defendants-

petitioners in their application for condonation of delay has been found to

be false and accordingly, the first appellate court has dismissed the

application for condonation of delay.

As a matter of fact, it has been found that after passing the

judgment and decree dated 28.7.2005 in their favour, the plaintiffs-

respondents filed execution of the judgment and decree. In the said

execution, the defendants-petitioners were served. After receiving notice,

they appeared before the Executing Court on 26.10.2005 through their

counsel and ultimately, the said execution application was disposed of being

satisfied on 18.11.2006. In view of the fact that the defendants-petitioners

were served in the execution application and they had appeared in the same,

the first appellate court has rightly come to the conclusion that the

defendants-petitioners were very much aware of the judgment and decree

against them. In spite of that, they did not file appeal immediately thereafter.

Normally, the courts take a liberal view in condoning the delay, but in the

instant case, when the defendants-petitioners were taking false plea in
CR No. 3532 of 2009 -3-

explaining the delay, in that situation, I am not inclined to take a liberal

view in their favour.

Dismissed.

November 10, 2009                         ( SATISH KUMAR MITTAL )
ndj                                                JUDGE