HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil First Appeal No. 975/2025 Fazzi Alias Fazri W/o Shri Rustam & Ors.

----Appellants Versus Uday Singh S/o Shri Shakti Singh & Ors.

----Respondents For Appellant(s) : Mr. Rahul Tiwari For Respondent(s) : Mr. Garvit Khandelwal HON'BLE MR. JUSTICE SUDESH BANSAL

Order

14/10/2025

1. Heard learned counsel for both parties on the application filed under Section 5 of the Limitation Act, seeking condonation of delay in filing the present first appeal.

2. Against the judgment and decree dated 02.08.2019, the present first appeal has been filed on 30.04.2025, which is delayed by 2008 days. Original defendant-Sawai Singh has passed away on 09.10.2020, hence, appeal has been filed by his daughters.

3. In the impugned judgment and decree dated 02.08.2019, a decree for specific performance, based on an agreement to sale dated 05.12.2006, was passed in favour of the respondent– plaintiff. It has inter alia been held that under the said agreement, defendant Shri Sawai Singh (now deceased) agreed to sell 1/3 share of Khasra No. 220/0.39, measuring 365 sq. yards, situated at Village Itarana, Tehsil & District Alwar, whereupon five rooms, baramda, kitchen, garage, chowk and stairs with chabutra etc. are constructed, to plaintiff against a total sale consideration of Rs.3,00,000/-. It has been held that out of the total sale consideration of Rs.3,00,000/-, Rs. 2,50,000/- was paid and Rs.50,000/- was to be paid at the time of execution of the sale deed and handing over of actual possession. The suit for specific performance was filed on 16.07.2009. It appears that the original defendant- Shri Sawai Singh, filed written statements, but later failed to adduce evidence and set ex-parte, subsequently, passed away on 09.10.2020. The suit was decreed ex parte against him, vide judgment dated 02.08.2019.

4. It has been further stated in the application under Section 5 of the Limitation Act that the appellants were not in knowledge of the present suit, as their father never disclosed the same to them. They came to know about the impugned judgment and decree in the month of April, 2025, when the Court Nazir visited the property to take possession of the house. Hence, a prayer has been made to condone the delay and to hear the first appeal on merits.

5. Per contra, learned counsel, appearing for the respondent- plaintiff has opposed the application, contending that in the execution proceedings, show cause notices were served upon appellant Nos. 3 and 4 on 28.06.2022, and upon appellant Nos. 1 and 2 on 11.01.2023, through chaspandagi. Thereafter, on deposition of the balance sale consideration of Rs.50,000/-, the sale deed has been executed through the court in favour of the plaintiff–decree holder on 06.11.2023, though the physical possession of the suit property is yet to be obtained. It has, therefore, been submitted that appellants too were in knowledge of the impugned judgment and there exists no sufficient reason to condone the huge delay, hence, application be dismissed and the present first appeal also deserves to be dismissed on the ground of delay itself.

6. Having heard counsel for both parties and from the facts narrated on record, it appears that appellants are married daughters of deceased defendant and claim to be in possession of the residential house wherein there brothers are residing with family. Appellants have been stated to be poor labourer and belong to lower strata of society and are rustic villagers. It has been stated that appellants filed this first appeal when in the execution of impugned judgment and decree, respondent-plaintiff sought to take possession of residential house through Court Nazir in the month of April 2025 and thereafter enquiry from the Court was made through their husband and this first appeal has been filed on 30.04.2025.

7. In the first appeal, issues in respect of execution of agreement dated 05.12.2006 as also payment of part of sale consideration to appe