Mohammad Rafiq, J. - (1.) THIS appeal has been filed by the defendant -appellant against the judgment & decree dated 1/6/2007 passed by Additional District & Sessions Judge No. 1, Jaipur Metropolitan, Jaipur whereby he decreed the suit filed by plaintiff -respondent No. 1 Jhumarlal Agrawal for recovery of Rs. 6,34,124.27 paisa, which included the principal amount and interest @12% per annum along with cost of Rs. 5000/ - and solvent security from the date of filing of the suit till actual recovery against defendant -appellant Bhagwan Das Gupta and defendants No. 2 and 3 -Naresh Chand Goyal and Shyam Sunder Goyal, respectively. Though the period of limitation for filing appeal is 90 days, but the present appeal has been filed by the defendant -appellant with the delay of 1591 days, equivalent to almost 4 1/2 years. Plaintiff -respondent has seriously contested the application filed by the defendant -appellant under Section 5 of the Limitation Act seeking condonation of delay. Arguments on such application were heard. This order will dispose of the aforesaid application.
(2.) IT would be significant to notice at the outset that ex -parte decree was passed against the defendant -appellant on 1/6/2007. Defendant -appellant filed an application under Order 9 Rule 13 CPC against the aforesaid ex -parte decree, which application was dismissed by the learned trial Court on 28/7/2008. Appeal there against, being S.B. Civil Misc. Appeal No. 3311/2008, was filed before the Court by the present defendant -appellant. This Court allowed the appeal vide judgment dated 17/4/2009 on the condition of appellant depositing 50% of the decreetal amount and furnishing solvent security with the executing Court for the balance amount of 50% and also paying a sum of Rs. 5,000/ - as costs to the plaintiff respondent and parties were directed to appear before the trial Court on 18/5/2009. Before however appellant could deposit 50% of the decreetal amount and furnishing solvent security with the executing Court, execution of the decree passed by the learned trial Court was stayed by this Court in the appeal filed by the co -defendants - Naresh Chand Goyal and Shyam Sunder Goyal, in S.B. Civil Regular First Appeal No. 552/2007. It was on that premise that the appellant did not deposit the amount in terms of directions of this Court dated 17/4/2009. But the appellant deposited the amount of Rs. 5,000/ - as cost awarded by this Court and requested the trial Court for dropping of execution proceedings against him. When execution proceedings were not dropped, defendant -appellant filed a writ petition before this Court bearing S.B. Civil Writ Petition No. 15863/2010 on 30/11/2010, which however was dismissed as withdrawn vide order dated 29/11/2011 with liberty to the appellant to file civil regular first appeal. It was thereafter that the appellant obtained certified copy of the judgment & decree dated 1/6/2007 and filed the present appeal on 7/1/2012 with the delay of 1591 days. The delay is sought to be explained by stating that the appeal could not be filed within limitation owing to the circumstances narrated above and that the appellant did not deposit half of the decreetal amount on account of bonafide belief that he was not required to do so because execution of entire judgment & decree has been stayed in the appeal filed by the co -defendants. Appellant filed an affidavit before the executing Court stating that he is owner of Plot No. A -51, Rohini Nagar -II, Jaipur measuring 252 square meter, which may be taken as collateral security of 50% in terms of the order of this Court in appeal. If eventually matter is decided against him, recovery may be made by sale of such plot, which was worth Rs. 6 lacs. The executing Court issued warrant of recovery on 27/5/2010 against defendant -respondent No. 2 -Naresh Chand Goyal & defendant -respondent No. 3 -Shyam Sunder Goyal. The executing Court thereafter issued attachment warrants against defendant -appellant on 6/8/2010 and then issued proclamation -notice on 27/9/2010. In those facts, appellant filed writ petition, which was dismissed as withdrawn vide order dated 29/11/2011 with the liberty to him file civil regular first appeal. It is against the backdrop of these facts that present appeal has been filed by the defendant -judgment -debtor on 7/1/2012 with the application seeking condonation of delay of 1591 days narrating the aforesaid events as sufficient cause for condonation of delay. The application has been contested by the Plaintiff -respondent/decree -holder, who has filed reply thereto opposing condonation of delay on the premise that the plea set up by the defendant -appellant is not bonafide and prayed for dismissal of the application for condonation of delay.
(3.) THIS Court has heard Shri R.K. Daga, learned counsel for the defendant -appellant Shri Bhagwan Das Gupta, Shri J.P. Goyal, learned senior counsel for plaintiff -respondent No. 1 Jhumar Lal Agarwal and Shri S.C. Gupta, learned counsel appearing for defendant -respondents No. 2 -Naresh Chand Goyal & defendant -respondent No. 3 -Shyam Sunder Goyal. This Court has anxiously considered rival submissions and perused the material available on record.;