Whether date of knowledge of death of party is relevant for deciding delay condonation application?

We are of the view that the order passed by the learned Single Judge is unsustainable in law. The delay in taking out the application has to be computed from the date of knowledge of the death of a party. It is the case of the appellants that they had no knowledge and as soon as they acquired knowledge, they took out application for bringing legal heirs on record. This aspect as regards knowledge is not seriously disputed by the respondent. Secondly, it is now well settled that the provisions of Order 22, Rule 1, Civil Procedure Code are not penal in nature. It is a rule of procedure and substantial rights of the parties cannot be defeated by pedantic approach by observing strict adherence to the procedural aspect of law. In the aforesaid circumstances, we are of the view that the learned Single Judge was in error in refusing to use discretion vested in him for condoning delay in taking out application for bringing legal heirs on record. Even if proceeding abates, the Court has ample powers to set aside the abatement, and condone the delay to bring legal heirs on record.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

L.P.A. No. 81 of 1993 in W.P. No. 2571 of 1991

Decided On: 28.10.2004

 Keshao s/o Kawadu Maral and Anr. Vs.State of Maharashtra and Ors.

Hon'ble Judges/Coram:

V.C. Daga and S.U. Kamdar, JJ.

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How to ascertain limitation for setting aside exparte decree?

As regards the point of limitation raised by the learned advocate for the petitioners, the same is devoid of substance. In terms of section 123 of the Limitation Act an application for setting aside the ex parte decree can be filed within 30 days from the date of the decree, but where the summons or notice was not duly served, it can be filed within 30 days from the date of knowledge of the decree to the applicant. The explanation to section 123 further clearly provides that substituted service under Order V, Rule 20 shall not be deemed to be due service. In other words, in case of service of summons by substituted service under Order V, Rule 20 of C.P.C. the period of 30 days for setting aside the ex parte decree is to be counted only from the date of acquisition of knowledge of the decree by the applicant.

Bombay High Court

Shri Shantaram Fatu Prabhu Desai & ... vs Smt. Harsha Umesh Sardessai & ... on 17 February, 1998

Equivalent citations: 1998 (3) BomCR 730, 1998 (3) MhLj 631

Bench: R Khandeparkar

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Good legal article on drafting of contract and their use in court

DOCUMENT WHICH IS REGISTRABLE AND NOT TRANSACTION

Deb Dutt Seal v. Raman Lal, AIR 1970 SC 659 wherein the

Hon'ble Supreme Court has held that it is on the construction of the document wherein it requires registration or not. The Hon'ble Supreme Court observed that in order to require registration, document must contain all the essentials of transaction and one essential is that the title deeds contain all essential of transaction. According to the Hon'ble Supreme Court it is a document which is registrable under the Registration Act and not a transaction.

THE REGISTERED DOCUMENT WILL OPERATE, NOT FROM THE DATE OF ACTUAL REGISTRATION, BUT FROM THE DATE WHEN THE DEED WAS EXECUTED

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