Hon’ble Sudhir Agarwal, J.—Heard Sri Bharat Pratap Singh, learned counsel for the petitioners and perused the record.

2. This writ petition is directed against order dated 3.3.2005 passed by 11th Additional District Judge, Aligarh in Civil Appeal No. 28 of 2004, Raja Amar Pratap Singh v. Smt. Basanti Devi and others.

3. It is pleaded in the writ petition that an agreement was executed on 1.6.1975 between respondent, Raja Amar Pratap Singh and petitioner Nos. 1, 2 and 3 i.e. Santosh Kumar Navman, Vijay Prakash Navman and Krishna Kumar Navman and one Basanti Devi (since dead) and now represented by legal heirs i.e. petitioners No. 4 to 7. The agreement was in respect of plot No. 695 having area 5 bighas, 6 biswas situated at Masoodabad, Qusba and Tehsil Kol, District Aligarh for a sum of Rs. 80,000/- out of which Rs. 10,000/- was paid in advance. The agreement, however, could not be registered for about two years due to detention of petitioner No. 3 under Maintenance of Internal Security Act (MISA) during Emergency. It is alleged that later on the extension of agreement was agreed and on 23.8.1982 a registered agreement of sale after receiving Rs. 20,000/- through bank draft dated 23.8.1982 was executed. The sale-deed was to be executed after obtaining permission from Urban Ceiling Authority by respondent. The possession of the property, it is alleged, remained with petitioners since they were already in possession even before execution of agreement on 1.6.1975.

4. Respondent, however, started obstruction in alleged peaceful possession of the property in dispute, hence the petitioners filed Civil Suit No. 248 of 1986, Krisna Kumar Navman and others v. Aligarh Muslim University and others, in the Court of Civil Judge, Aligarh on 4.4.1986 wherein respondent, Raja Amar Pratap Singh was impleaded as proforma defendant No. 2. During pendency of the suit the respondent- defendant No. 2 moved an application dated 17.2.1987 for transposing him as plaintiff alongwith other plaintiffs and with the consent, application was allowed and transposition effected.

5. The petitioners filed another suit for specific performance of alleged registered agreement of sale being suit No. 365 of 1995 in the Court of Civil Judge (S.D.), Aligarh. The suit was filed on 30.5.1995. Notice was issued to the defendant. Registered letter was returned with endorsement “not claimed”. The Court also passed an order for substituted service. It is alleged that petitioner No. 1 himself had gone to Dehradun and met respondent on 29.9.1995 and apprised him of the suit with request to enter appearance. The notice was also published in daily newspaper “Doon Darpan” having circulation at Dehradun and is in the approved list of District Court, Dehradun. The respondent, however, did not appear. The suit was decreed ex parte on 22.1.1996. A copy of ex parte judgment is on record as Annexure-6 to writ petition.

6. The Court below has observed that plaintiffs filed an affidavit as evidence in support of their case and one Santosh Kumar PW 1 also filed his affidavit in evidence. Besides, copy of agreement, notice and receipts were also filed. In absence of any contradiction or defence by defendant, the suit was decreed ex parte.

7. The petitioners put the decree into execution vide Execution Case No. 37 of 1996. No objection was filed though it is alleged that a notice of execution case was served upon respondent on 19.8.1996. The Court below on 20.1.1997 executed the sale-deed in favour of petitions after accepting Rs. 50000/-.

8. Restoration application alongwith an application seeking condonation of delay was finds on 20.9.1997 on behalf of respondent through his attorney Sri Atikur Rehman, S/o Late Abdul Gafoor. It is said that till the date of the decree of the suit, no notice or summon or otherwise information was received by the respondent. He got the information for the first time on 19.8.1996 when application of execution in Execution Case No. 37 of 1996 was rec