JUDGMENT :

1. The present appeal is reported to be barred by 1244 days. An application under Section 5 of the Limitation Act has been filed on behalf of appellant/applicant No.2 with the submission that the counsel representing the appellants did not inform them about the impugned judgment and decree dated 30.05.2019 and unfortunately he passed away subsequently. Recently when applicant No.2 Shashi Bhushan Patwa visited the office of the counsel, a bag of documents was handed over to him and in the bag, copy of the impugned judgment and decree dated 30.05.2019 was found by him. It has been submitted that prior to the said date, respondents were not even aware of the judgment and decree dated 30.05.2019. Further, the ground of applicant No.2 Shashi Bhushan Patwa being suffering from serious ailment has also been submitted. With the said submissions, it has been prayed that the delay caused in filing the present appeal be condoned.

2. A reply to the said application has been filed on behalf of the respondents with the specific pleading that the averment as made by the appellants being non aware of the impugned judgment and decree dated 30.05.2019 is totally false as, after the passing of the said judgment and decree, the applicants and to be specific, applicant No.2, was pursuing the proceedings before the various courts between the same parties.

It has been submitted that soon after the impugned judgment and decree been passed, firstly, an application under Section 47, CPC was filed on 20.07.2019 by appellant No.2 Shashi Bhushan Patwa and further, even objections under Order 21 Rules 97, 100 & 101, CPC were filed on 11.09.2019.

3. A list of events has been filed by learned counsel for the respondents and along with the same, the documents – the application under Section 47, CPC as filed by appellant No.2 Shashi Bhushan Patwa and the objections as filed by him under Order 21 Rules 97, 100 & 101, CPC have been placed on record.

4. Learned counsel for the appellants submitted that the objections as filed by appellant No.2 were in the execution proceedings initiated by the decree holder in terms of the judgment and decree passed by the learned Trial Court and the same had nothing to do with the judgment and decree passed by the first Appellate Court. Counsel submitted that a bare perusal of the application under Section 47, CPC as well as the objections under Order 21 Rules 97, 100 & 101, CPC would make it clear that the same were only qua the judgment and decree passed by the learned Trial Court.

Counsel further submitted that the documents annexed along with the application pertaining to medical treatment of the appellant No.2 are sufficient to prove that he was suffering from serious ailments and hence, the said fact should also be taken into consideration while considering the delay caused in filing the present appeal.

5. Per contra, learned counsel for the respondents submitted that a perusal of the documents as placed on record by him would make it crystal clear that the appellants were very well aware of the impugned judgment and decree dated 30.05.2019 as the application under Section 47, CPC was filed on 20.07.2019 and the objections under Order 21 Rules 97, 100 & 101, CPC were also filed after passing of the said judgment and decree. Therefore, the delay caused in filing the present appeal does not deserve to be condoned.

6. At this stage, learned counsel for the appellants prayed for time to file an additional affidavit to make further averments regarding the delay caused in filing the present appeal.

7. The request as made by learned counsel for the appellants is declined firstly, for the reason that the application under Section 5 of the Limitation Act was filed way back in the month of February 2023 and the reply to the same was filed in the month of July 2023. It is only when the arguments on the application under Section 5 of the Limitation Act were heard by this Court yesterday and learned counsel for the responden