The court may condone the delay in filing an appeal under Section 5 of the Limitation Act if the appellant was unaware of the pendency of the suit and passing of the decree.

JUDGMENT

1. Heard learned counsel for the parties. An application has been filed by the appellants under Section 5 of the Limitation Act seeking condonation of delay in filing the appeal.

2. Learned counsel for the appellants submitted that the suit was filed by the plaintiff against Abdul Raseed and Ayub Bhai seeking specific performance of contract dated 24.08.1995 in the year 2011. Even after filing of the suit, the suit property was transferred to the appellants by a registered sale-deed on 05.10.2011. The said fact was not brought to the notice of the trial court and after contest, the trial court decreed the suit on 10.04.2014. The appellants on becoming aware of the passing of the decree when the revenue authorities informed them about the mutation entries, filed present appeal alongwith leave to appeal.

3. The leave to appeal has been granted by the Court by its order dated 03.03.2021 and in view of the fact that the appellants were unaware of the pendency of the suit and passing of the decree, the delay in filing the appeal may be condoned.

4. Learned counsel appearing for the respondent-plaintiff, made submissions that though the leave to appeal has been granted by the Court, the fact that the property was transferred after filing of the suit, the appellants are not entitled to seek condonation of delay.

5. I have considered the submissions made by learned counsel for the parties and have perused the material available on record.

6. The facts are not in dispute wherein based on an agreement to sale dated 24.08.1995, the suit was filed by the plaintiff against the defendants, during the pendency of the suit, defendant transferred the suit property to the appellants and did not disclose the said fact before the trial court and ultimately the trial court decreed the suit. There is no material on record to indicate that the appellants were aware of the pendency of the suit or passing of the decree.

7. As the appellants have been found entitled to file appeal while accepting their application for leave to appeal, the delay in filing the appeal in the circumstances, deserves to be condoned.

8. Consequently, the application filed by the appellants under Section 5 of the Limitation Act is allowed. The delay in filng the appeal is condoned.

9. List the appeal for admission on 02.08.2021 after reflecting the name of Mr. Rajat Dave as counsel appearing for the respondent-plaintiff in the cause list.