Condonation of delay – Allowing of leave to appeal does not amount to allowing application for condonation of delay by itself.

Mrs. Rekha Mittal, J.:- The present petition lays challenge to order dated 07.10.2016 (Annexure P1) passed by the Additional District Judge, Mewat whereby application filed under Section 5 of the Limitation Act for condoning delay of more than 2 years in filing the appeal has been dismissed.

2. Counsel for the petitioners has submitted that Anand Dutch Foods (India) Limited filed a suit for specific performance of agreement of sale dated 01.06.1992 purported to be executed by Ram Lal in respect of agricultural land measuring 103 kanals 13 marlas situated within the revenue estate of village Sakarpuri, Tehsil Ferozepur Jhirka, District Mewat. In the said suit, Daya Chand, Amar Chand and Dolta sons of Ram Lal, Smt. Patango daughter of Ram Lal, Surender Sharma son of Khurshi Ram, Vijay Pal, Sunder Singh, Dharam Veer sons of Attar Singh were arrayed as defendants. The suit was decreed by the learned trial Court vide judgment and decree dated 28.09.2013. It is argued that Vijay Pal, Sunder Singh and Dharam Veer (defendants No.6 to 8) purchased suit land from Daya Chand, etc. (defendants No.1 to 4) vide sale deed bearing No.60 dated 09.04.2007 before filing of the suit, though, the sale deed was registered on 17.04.2007 after the suit was instituted on 12.04.2007. The petitioners purchased suit land from Vijay Pal and others (defendants No.6 to 8) vide sale deeds No.686 dated 06.09.2010 and 791 dated 02.09.2013. The judgment and decree passed by the trial Court was not challenged by any of the defendants who had already lost their interest in the suit land due to transfer of land by Daya Chand and others in favour of Vijay Pal and others and further transfer by Vijay Pal and others in favour of the petitioners. As soon as the petitioners came to know about the judgment and decree dated 28.09.2013 in April, 2016 (to be precise on 12.04.2016), the petitioners filed civil appeal No.638 of 2016 on 12.05.2016 along with an application seeking leave to appeal. The application for leave to appeal was allowed by the Appellate Court vide order dated 12.05.2016 wherein the Court held that there are arguable points in the appeal and notice of appeal as well as injunction application and application for condonation of delay was issued to the respondents. It is further argued that once the Appellate Court has allowed leave to appeal by holding that there are arguable points, the Court should not have dismissed the application for condonation of delay and rather provided an opportunity to the petitioners to be heard on merits of the appeal. It is further argued that as the petitioners neither came to know about pendency of the suit nor passing of the judgment and decree at any time prior to 12.04.2016, the appeal filed within a period of one month from the date of knowledge cannot be said to be barred by limitation.

3. Counsel for the petitioners adopted another line of argument by contending that the Court of appeal failed to take into consideration the provisions of Section 19(b) of the Specific Relief Act, 1963 (in short ‘the Act’) that provides that specific performance of a contract may be enforced against any other person claiming under him by title arising subsequently to the contract except a transferee for value who has paid money in good faith and without notice of the original contract. It is vehemently argued that the present petitioners are also entitled to protection of Section 19(b) of the Act being transferees for value in good faith and without notice of the original contract of 1992 which was sought to be enforced in the year 2007. In support of his contention, he has referred to judgment of Hon’ble the Supreme Court of India “Har Narain (Dead) by LRs vs Mam Chand (Dead) by LRs and others”, [2011(2) Law Herald (SC) 1610 : 2011(2) Land.L.R. 142 (SC)] : 2010(4) RCR (Civil) 853.

4. I have heard counsel for the petitioners, perused the paperbook and the various annexures particularly the order impugned.

5. A careful reading