A.V. Chandrashekara, J.

1. Heard the learned counsel appearing for the parties.

2. The present petitions filed under Article 227 of the Constitution of India are directed against the orders passed by the Additional District Judge, Chitradurga, in Miscellaneous Appeal, MA 17/2013 filed under Order 43 Rule 1(d) of CPC. The petitioner herein was the appellant in the said Miscellaneous appeal. The respondent herein was the respondent in the said case.

3. The facts lading to the filing of this petitions under Article 227 of the Constitution of India are as follows:--

"Smt. Geetha was the plaintiff in the Original Suit bearing No. 61/2002 filed before the Court of I Additional Senior Civil Judge at Chitradurga. It was filed for the relief of specific performance of the contract based on an agreement of sale said to have been executed by this petitioner on 21-3-1997 agreeing to sell the entire suit schedule property measuring 8 acres for Rs. 1,15,000/-. The defendant is stated to have received a sum of Rs. 1,00,000/- as consideration under the agreement of sale on 21.3.1997 itself. The remaining amount of Rs. 15,000/-, being the balance of consideration, according to the plaintiff was to be received by the defendant on the date of executing sale-deed. Petitioner is stated to have given extension of time on two years by endorsing the same as the agreement of sale. Since the defendant did not perform his part of the contract, the plaintiff got issued a notice and later-on filed a suit for the relief of specific performance of the contract."

4. Summons had been issued to the defendant to secure his presence. According to the trial court, the summons sent to the defendant through the Registered post was returned by the postman with an endorsement "refused". Therefore, the trial Court treated it as a deemed service and proceeded to record the evidence of the plaintiff Smt. Geetha who is examined as P.W. 1 and she has got marked as many as 8 documents. Ultimately the suit is decreed as prayed for directing the plaintiff to receive balance consideration of Rs. 15,000/- and to execute a registered sale deed.

5. The defendant, according to the plaintiff, is a permanent resident of Chitradurga and was residing in the Bellary town as on the date of filing of the suit. The Execution Petition in No. 411/2010 was filed before the I Additional Senior Civil Judge at Chitradurga and on receipt of the execution notice only, the defendant came to know of the decree drawn by the Court against him in O.S. No. 61/2002. Hence, the defendant- petitioner herein chose to file an application in terms of Order 9 Rule 13 of CPC before the Court and the same was numbered as Miscellaneous Petition No. 33/2011. In paragraph-4 of the said petition filed under Order 9 Rule 13 of CPC, the petitioner has averred that he was shocked to know about the decree obtained by the plaintiff only after receiving notice in Execution Petition No. 411/2010 and immediately applied for certified copies of the Judgment & decree on 24-5-2011 and obtained the same on 31-5-2011. It is his case that he has never executed any agreement of sale nor received any money from the plaintiff. According to him, he has strong grounds to contest the case on merits and if delay is not condoned and the Petition is not allowed he would be put to irreparable loss and hardship. The said petition came to be filed on 24-8-2011.

6. The said Petition was objected to, by the plaintiff by filing objections. Since there was delay in filing the Petition under Order 9 Rule 13 of CPC, an application was also filed under Section 5 of the Limitation Act seeking condonation of delay. Hearing arguments on the application filed under Section 5 of the Limitation Act, the learned Judge of the trial Court has chosen to dismiss the said application and consequently the Petition filed under Order 9 Rule 13 came to be dismissed as time barred as against which an appeal was filed in terms of Order 43 Rule 1(d) of CPC before