- (1.) Leave granted.
(2.) These appeals arise out of the following facts: Ramakrishna Mudaliar, the owner of the suit property executed two sale deeds dated 26.3.1959 and 31.3.1959 in favour of Mrs. Rajaby Fathima Buhari, and as per an oral understanding between the two (which was subsequently reduced into writing under an agreement dated 24.3.1959) it was agreed that in case the purchase amounts constituting the sale deeds were repaid within three years, the properties would be re-conveyed on payment of 10% in addition to the sale price, etc. It appears that some time in May 1960 Mrs. Buhari, despite notice, failed to re-convey the suit property on which Ramakrishna Mudaliar and his son Matha Prasad, the present appellant, through his first wife filed Suit No. C.S. No. 43/1962 for specific performance of the agreement of re-conveyance dated 24.3.1959. The said suit was decreed on 10.11.1965 on which Mr. Buhari and Mrs. Buhari filed two appeals. A Division Bench of the High Court allowed the appeals by its judgment dated 13.5.1972 whereupon Ramakrishna Mudaliar alone preferred a Special Leave Petition to this Court. Leave was granted and the appeal was duly numbered as C.A. No.224/1974. Matha Prasad, who was also one of the plaintiffs in C.S. No. 43/1962, however, preferred no appeal. Mrs. Buhari and Ramakrishna Mudaliar both died some time in the years 1980/1982 on which their legal representatives were also brought on record in the various litigations which were then pending between them. Matha Prasad aforementioned and the legal representatives of Ramakrishna Mudaliar thereafter assigned all their rights, including the right to obtain re-conveyance of the suit properties by executing several registered documents in favour of Lalchand Meghraj and Chimandas Meghraj respondent Nos. 1 and 2 (hereinafter referred to as the "assignees"). The assignees filed I.A. No.1/1994 for being impleaded as parties in the appeal pending in the Supreme Court, but the Court while allowing the appeal, and decreeing the suit for specific performance, dismissed the I.A. as the appeal itself was being disposed of on merits. An application for a review of the order qua the I.A. was also dismissed on 1.11.1995. Matha Prasad thereafter filed Execution Petition No.48/1997 impleading the legal representatives of Mrs. Buhari and ignoring the assignees as also the other legal heirs of Ramakrishna Mudaliar. The assignees thereupon filed Application Nos. 2005-2006/1998 praying that they be impleaded as parties in the Execution Petition. The Master of the High Court in his order dated 19.4.1999 issued notice to the legal representatives of Ramakrishna Mudaliar and also directed Matha Prasad to take steps to serve them for 10.6.1999 and the applicant/assignees were also directed to file the assignment deeds executed by the legal representatives of Ramakrishna Mudaliar. Matha Prasad, however, filed Application Nos.1106-1108/2000 seeking a recall of the order of the Master dated 19.4.1999 and also a stay of the proceedings pending before him. The learned Single Judge in his order dated 3.7.2000 set aside the order dated 19.4.1999 and dismissed the applications. Pursuant to this order of the learned Single Judge, the Master by his order dated 7.7.2000 directed delivery of possession forthwith and the execution of the deeds of re-conveyance in favour of Matha Prasad alone within one month from the date of the order. The legal representatives of Ramakrishna Mudaliar thereupon filed Application Nos.2871-2873/2000 against the order of the Master dated 7.7.2000. The learned Single Judge of the High Court modified the order of the Master holding that the applicants as decree holders along with Matha Prasad were entitled to a re-conveyance of the property in dispute in respect of their share, if any, of the property but that was to be decided in separate proceedings. Matha Prasad filed an appeal against this order but a Division Bench dismissed the appeal and a Special Leave Petition filed in this Court too was dismissed on 17.4.2003. It appears that on coming to know of the order dated 3.7.2000, the assignees and several others filed Application Nos. 2154-56/2003 making a prayer for the setting aside of the said order and also for the condonation of the delay of 971 days delay in filing the applications. These applications were dismissed by the learned Judge dated 8.12.2003 solely on the ground that they were barred by limitation. An appeal was preferred against the order of the learned Judge which has been allowed by the Division Bench vide order dated 27.4.2004. This order has been impugned by way of the present appeal by Matha Prasad. The Division Bench held that two matters were required to be considered : (1) whether the appellants had properly explained the delay of 971 days and (2) whether the appellants were entitled to canvas the case on merits in Application Nos. 1106- 1108/2000 before the learned Single Judge
(3.) The Division Bench then went on to examine both the issues and observed that from the facts of the case it was apparent that the order dated 3.7.2000 dismissing Application Nos. 2005-2006/1998 had been made without notice to the applicants and without their knowledge and that an examination of the merits of the controversy was closely interlinked with the question of limitation, which necessitated a decision on merits as well.;