Point of Law: Circumstances, they cannot deny about the knowledge of the decree at a belated stage. The delay was not properly explained.

ORDER :

The Petitioner is the 2nd defendant in the suit. He filed the present revision aggrieved by the order dated 14.02.2020 passed in I.A.No.147 of 2019 in O.S.No.23 of 2009 on the file of the VI Additional District Judge, Visakhapatnam. The petitioner herein filed I.A. under Section 5 of Limitation Act for condonation of delay of 2460 days in filing petition to set aside the exparte decree dated 14.6.2012.

2. The plaintiff filed the suit against defendants 1 and 2 for specific performance of agreement of sale. As per the averments of the plaint, the suit schedule property belongs to the 2nd defendant and the 1st defendant has represented that he purchased the property from the 2nd defendant and offered to sell the same to the plaintiff and he has entered into an agreement of sale dated 11.8.2007 in respect of the A schedule property. As far as B schedule property is concerned he has entered into an oral agreement. After elaborate hearing, the suit was decreed on 14.6.2012. Subsequent to the decree, the plaintiff filed I.A.No.312/2011 in the said O.S. to execute and register the sale deed in pursuance to the agreement of sale dated 11.8.2007 and accordingly, the Court passed a decretal order on 25.7.2011 allowing A schedule property for depositing the amount and for registration by granting two months time. Accordingly, the plaintiff filed E.P.No.4 of 2012 for execution of the sale deed with regard to A schedule property. The Court executed the sale deed in favour of the plaintiff on 20.01.2014. Subsequently, the plaintiff filed I.A.No.379/2016 for granting permission to deposit the sale consideration with regard to B schedule property and they have also submitted their readiness to deposit the sale consideration with regard to B schedule property. In the said I.A., the Court granted time for filing counter till April 2017. As no counter is filed, on 19.4.2017, the Court granted permission to plaintiff to deposit the sale consideration for B schedule property. The same was deposited.

3. While things stood thus, the petitioner/2nd defendant filed the present I.A. for condonation of delay of 2460 days. The very contention of the petitioner is that the affidavit filed along with the I.A. is after institution of the suit and the petitioner has informed the 1st defendant and asked him to take care of the entire litigation and in view of the various occupations, the petitioner was moving in and out of India and he entrusted the entire litigation to the 1st respondent on behalf of the petitioner also. In the written statement sent by the 1st defendant, it is clearly stated that the 1st defendant has never offered to sell the B schedule property to the plaintiff either directly or indirectly and clearly denied the oral agreement and accordingly, the 1st defendant has promised to the 2nd defendant that he will inform the stage of the litigation whenever the presence of the petitioner is required. But after coming to know about the filing of the E.P.No.29/2018 when the petitioner tried to contact the 1st defendant he has completely avoided. In view of the said circumstances after obtaining the certified copy of the judgment and decree dated 14.6.2012 and on perusal of the same it revealed that witness of the plaintiff were not even cross-examined on behalf of the defendants. As witnesses were not cross-examined on behalf of the defendants and as there was no evidence from their side before the Court, the present application is filed. As the 1st defendant was not informed about the proceedings of the suit, he was totally kept under dark.

4. After notice, the 1st respondent/plaintiff filed counter denying all the allegations made in the petition and in fact they have denied about the knowledge of the judgment in the above suit very recently is a deliberate lie. In fact, the plaintiff/respondent has filed E.P.No.4/2012 for registration of sale deed in respect of the A schedule property and the notice to the petitioner/judgment debtor was pe