Court No. - 59
Case :- SECOND APPEAL DEFECTIVE No. - 398 of 2018 Appellant :- Mulayam Singh Respondent :- Smt. Saroj And 5 Others Counsel for Appellant :- Sangam Singh
Hon'ble Surya Prakash Kesarwani,J.
Heard Sri Sangam Singh, learned counsel for the appellant.
This is defendants' appeal, which has been filed beyond limitation by 14 years and 281 days.
In paragraph no.6 of the affidavit the defendant-appellant has offered explanation for delay in filing the present second appeal as under:
"That the fact as to the existence of the impugned order and decree dated 23.10.2003 was come into knowledge to the appellant on 6.09.2018, when the respondents came with other property dealer for taking possession over the disputed land and show the order dated 23.10.2003 and a mutated Khatauni in pursuance of the order dated 23.10.2003, mutated in the year 2011 in the year thereafter, appellant asked to his brothers and other co-owners about the same then the brothers of appellant told to the appellant about the exparte judgment dated 23.10.2003 and also asked that they have already filed a secod appeal before the Hon'ble Court thereafter appellant came to Allahabad on 20.09.2018 with his son and asked to his counsel to challenge the aforesaid exparte judgment but the counsel asked to take the certified copy of the impugned judgment and decree thereafter appellant applied for certified copies through counsel and after obtaining the certified copies the present appeal is being preferred".
In the impugned judgment of the first appellate court dated 23.10.2003 in Civil Appeal No.4 of 2002 (Smt. Saroj and others v. Ram Sanehi and others), a finding has been recorded that despite service of notices, the defendants do not appear.
The impugned judgment of the first appellate court is an exparte judgement.
Learned counsel for the defendants-appellant submits that no notice of the first appeal was served upon the defendants- appellant and, therefore, there was sufficient reason for delay in filing the present second appeal.
Be that as it may, the proper remedy available to the defendants-appellant was to file a recall application before the first appellate court, if according to him no notice was served upon him.
In view of the aforesaid, in the absence of any proper explanation for delay of 14 years and 281 days, the Delay Condonation Application is rejected. Consequently, the appeal is also dismissed.
Order Date :- 31.10.2018 Ak/