Matha Prasad Vs. Lalchand Meghraj & Ors  Insc 330 (26 March 2007)
C.K. Thakker & Harjit Singh Bedi
(arising out of SLP) Nos. 12237-12239/2004) HARJIT SINGH BEDI,J.
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
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 ? 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.
The learned counsel for the parties have been heard at great length. Several
issues have been raised by the learned counsel with regard to the nature of the
assignments and the right of the assignees to seek a re-conveyance of the
property. It has been pleaded by the learned counsel for the appellants that
the learned Single Judge had dealt with the matter on limitation alone and as
such the Division Bench should not to have gone to the merits of the
controversy. The learned counsel for the respondents have, on the contrary,
emphasized that the question of limitation and the right of the assignees being
closely interlinked, and the matter being about 4 decades old, clearly
justified the composite order.
Both the counsel have also referred to various provisions of the CPC, the
Transfer of Property Act and the Contract Act and also relied upon a large
number of judgments of the Supreme Court and the various High Courts in support
of their respective contentions. We, however, feel disinclined to go into the
merits of the controversy, as we are of the opinion that the Division Bench
ought to have confined its decision only to the question dealt with by the
learned Single Judge viz. the question of limitation. The Division Bench has
dealt with the issue of limitation in paragraphs 18 and 19 of the impugned
judgment and from a reading thereof, we observe that Application Nos.
1106-1108/2000 filed by the assignees in which notice had been issued on
19.4.1999 for 10.6.1999 by the Master were dismissed by the learned Single
Judge by order dated 3.7.2000 without notice to the applicants i.e. the
assignees. In this situation, the Division Bench was justified in holding that
the order of the learned Single Judge was not sustainable. The learned counsel
for the appellant, has, however, urged that no particulars had been spelt out
in the application justifying the condonation of a delay of 971 days.
We are of the opinion, however, that the applicants have explained the delay
and we accordingly endorse the observations of the Division Bench on this
As noted above, the learned Single Judge had dismissed the applications by
order dated 3.7.2000 wholly on the ground of limitation. By the impugned
judgment, the Division Bench has not only condoned the delay but taken a
decision on merits as well. We are of the opinion that the second exercise was
not justified as the only issue before the Division Bench was the question of
limitation. We, accordingly, set aside the judgment of the Division Bench to
the extent that it goes on to the merits of the controversy but maintain it in
so far that it deals with the question of limitation. Ipso facto the matters
are restored to a re-hearing on merits. We accordingly remand the applications
to the learned Single Judge for fresh decision with a request that in the
background of the long pending litigation, the applications should, if
possible, be taken up on a priority basis uninfluenced by any observations by
the Division Bench of the High Court in the order dated 27.4.2004 or of this
Court in these proceedings. We also observe that as we have dealt only with the
question of limitation, it would be open to all the parties to the litigation,
whether before us today or not, to raise all other pleas open to them in law.
The appeals are accordingly disposed of.
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