JUDGMENT :

REKHA BORANA, J.

1. The present appeal has been preferred by the appellants against the judgment and decree dated 13.03.2014 passed by the District Judge, Pali in Civil Original Suit No. 104/2012 whereby the suit under Section 6 of the Specific Relief Act, 1963 (for short ‘the Act of 1963’) as preferred by the plaintiff had been decreed.

2. Along with the appeal, an application under Section 5 of the Limitation Act has also been preferred as the appeal is reported to have been filed with a delay of 3228 days.

3. Arguing on the application under Section 5 of the Limitation Act, learned counsel for the appellants submitted that against the impugned judgment and decree dated 13.03.2014, at the first instance, a regular appeal was preferred on 06.05.2014 which was disposed on 08.02.2016 with the observation that the defendants ought to have preferred an application under Order IX Rule 13 of Code of Civil Procedure (CPC).

4. An application under Order IX Rule 13 CPC was therefore preferred by the defendants on 27.02.2016 before the learned trial Court and the said application was rejected on 28.05.2022. Against the said order, S.B. Civil Misc. Appeal No. 1297/2022 was preferred on 03.10.2022 and the same was dismissed by this Court vide order dated 13.12.2022. Vide the said order, the order dated 28.05.2022 whereby the application under Order IX Rule 13, CPC as preferred by the defendants had been dismissed, was affirmed.

5. Learned counsel for the appellants submitted that the order dated 13.12.2022 was assailed further before the Hon’ble Apex Court vide a Special Leave to Appeal, however, the same was withdrawn on 10.04.2023 and after the said withdrawal, the present regular first appeal has been preferred on 13.04.2023 before this Court assailing the original judgment and decree dated 13.03.2014. It has been submitted that the appellants were bonafidely pursuing the application under Order IX Rule 13, CPC and therefore, the delay deserves to be condoned.

6. Per contra, learned counsel for the respondent submitted that the delay caused in filing the present appeal does not deserve to be condoned firstly, as the regular appeal assailing the impugned judgment and decree, at the first instance was preferred by the defendants in the year 2014 itself and the same was disposed of. Meaning thereby, the remedy of regular appeal against the impugned judgment and decree had already been assailed and therefore, the present appeal amounts to the second appeal against the same judgment and decree which had already been challenged and disposed of. Secondly, once the application under Order IX Rule 13 CPC has been dismissed and the said order has been affirmed, the natural consequence is that the prayer of the defendants for setting aside the impugned judgment and decree has been denied and once the Court has found that the judgment and decree cannot be set aside, the present appeal with the same prayer for setting aside of the impugned judgment and decree is not maintainable. Thirdly, even if it is assumed that despite the rejection of the application under Order IX Rule 13 CPC, a regular appeal challenging the original judgment and decree is maintainable, the present appeal would not be maintainable in terms of Section 6 of the Act of 1963. Learned counsel submitted that the present was a suit under Section 6 of the Act of 1963 and in terms of Section 6(3) of the Act of 1963, the present appeal cannot be held to be maintainable.

7. In rejoinder, learned counsel for the appellants submitted that the remedy under Order IX Rule 13, CPC and a regular appeal under Section 96 of CPC are two independent remedies and the defendants are very well entitled to prefer the regular first appeal even if their application under Order IX Rule 13 CPC had been rejected. In support of his submission, learned counsel relied upon the Hon’ble Apex Court judgment rendered in the case of Bhivchandra Shankar More vs. Balu Gangaram More and Others, (2019) 6 SCC 387.