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CASE NO.: Appeal (civil)  1576 of 2007

PETITIONER: S.V. Matha Prasad

RESPONDENT: Lalchand Meghraj & Ors

DATE OF JUDGMENT: 26/03/2007

BENCH: C.K. Thakker & Harjit Singh Bedi

JUDGMENT: J U D G M E N T

(arising out of SLP) Nos. 12237-12239/2004)

HARJIT SINGH BEDI,J.

               Leave granted.                                          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

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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 ?

           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

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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 \026  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 aspect.                      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.