Delay of 335 days in filing second appeal not condoned.

Invoking the review jurisdiction of this Court under Order 47, Rule 1 of Code of Civil Procedure, the petitioner/appellant in C.M.P. No. 14563 of 1991 in S.A. No. 1659 of 1991 has filed this application to review the order passed by a learned single Judge of this Court, in the above petition, dated 7-4-1994 on the ground of legal error, grave injustice and apparent mistake.

2. The applicant is the sixth defendant in the suit, O.S. 137 of 1984 on the file of the First Additional Subordinate Judge, Pondicherry. The first respondent filed the suit against the respondents 2 to 6, the defendants 1 to 5 and the applicant herein for the relief of specific performance of an agreement of sale dated 27-4-1977 executed by the 2nd respondent for herself and on behalf of the respondents 3 to 5, agreeing to sell the suit property for a sum of Rs. 22,500/- in all. An advance of Rs. 13,780/- was received, agreeing to execute the sale deed within a period of six months from the date of the execution of the said agreement. Though the first respondent/plaintiff was ready and willing always to pay the balance and get the sale deed executed, respondents 2 to 5 did not comply with the demands, which necessitated the first respondent to file the above suit. The suit was resisted on the ground that the said agreement of sale claimed to have been entered into is not a valid one for dearth of legal sanctity according to the Court of law along with other grounds inter alia. Respondents 2 to 5 who are defendants 1 to 4 in the meanwhile, are claimed to have sold the suit property to the 5th defendant by name Lakshmi Ammal who in turn, sold the same to the 6th defendant, Kandasamy, who is the appellant as well as the applicant herein. According to the first respondent herein viz., the plaintiff, the sale deed executed by the respondents 2 to 5 to the 6th respondent and the sale deed executed by the 6th Respondent in favour of the applicant herein are not valid.

3. The execution of the sale deed in favour of the 6th respondent by respondents 2 to 5 in respect of the suit property was admitted and so also the transfer of the suit property by the 6th respondent in favour of the applicant herein was admitted. Consequently, the applicant herein initiated eviction proceedings against the tenant by name Shanmugham Chettiar and got an order of eviction, which was also admitted by respondents. It was further admitted that the first respondent herein viz., the plaintiff has already purchased one-fourth share in the suit property from one Vaidyanathan and his legal heirs. However, the validity of the agreement of sale claimed by first respondent/plaintiff was denied and on that ground, the suit for the relief of specific performance was hotly contested. As no legal sanction was obtained from the Court of law and the claim of the plaintiff was also barred by the law of Limitation and so on, after full trial, the suit O.S. 137 of 1984 was dismissed in full by the trial Court on 4-1-1989. An appeal was preferred against the said judgment in A.S. No. 32 of 1989 by the first respondent/plaintiff. The appeal was allowed and consequently, a decree for specific performance in favour of the first respondent/plaintiff was passed on 23-2-1990.

4. Aggrieved at this, the 6th defendant in the suit, who is the purchaser of 3/4th of the suit property from the 5th defendant, filed second appeal along with a petition C.M.P. 14563 of 1991 to condone the delay of 335 days under Section 5 of Limitation Act. The applicant/6th defendant purchased the suit property under the sale deed dated 23-11-1981 from the 5th defendant, under Ex. B.3, whereas the 5th defendant purchased the property on 13-6-1977 and 30-10-1980 under Exs. B.2 and 4. As on the date of Ext. B.4th, the 5th respondent was minor, the sale deed has been rectified on 19-8-1985 under Ex. B.5.

5. Aggrieved at the judgment rendered by the learned lower appellate Judge in A.S. No. 32 of 1989, the present applicant filed I.