JUDGMENT : A.J. Desai, J. 1. By way of the present petition under Article 227 of the Constitution of Indian, the petitioners have challenged an order dated 16.07.2014 passed by the 5th Additional District Judge, Surat in Civil Misc. Application No. 162 of 2011, by which the application filed by the present petitioners under Section 5 of the Limitation Act has been rejected. 2. Pursuant to notice issued by this Court, the respondent No. 1 has filed his affidavit and opposed grant of any relief as prayed for. 3. Though the question before this Court is in narrow compass, it is required to be dealt with keep in mind all relevant facts arose, during pendency of hearing of the petition, before the Appellate Court, which are as under: 3.1. That a piece of land bearing Survey No. 74, situated at village Jahangirabad, Taluka Choryasi, District Surat known as "Ghasiya land" (grass land) [which is herein after referred to as the disputed property] belonged to one Balubhai Bhikhabhai Patel. An agreement to sale was executed by said Balubhai Patel in favour of Jamubhai Revabhai Patel - present respondent No. 1 - (original plaintiff) for the consideration referred therein as well as on compliance of certain terms and conditions. Shri Balubhai died on 16.12.1991. Subsequent to his death, his wife namely Kantaben became the owner of the said property. Jamubhai Revabhai Patel filed Special Civil Suit No. 264 of 1993 in the Court of Civil Judge (S.D.), Surat against Kantaben, widow of Balubhai Patel for specific performance with regard to the agreement to sale executed by her late husband. She was served with summons issued by the Court and thereafter, she appeared through an advocate. The plaintiff had also filed an application under Order 39 and Rule 1 - 2 of the Code of Civil Procedure, 1908 [herein after referred to as the Code] for interim relief, which was granted by the concerned Court. The suit remained pending for a considerable long time. 3.2 In the year 2009, the advocate appearing for the plaintiff, argued the matter. However, neither the defendant Kantaben nor her advocate appeared before the Court and therefore, the stage of the hearing of the arguments of the defendant came to be closed by the concerned Civil Court. Ultimately, the suit was decreed in favour of the plaintiff on 31.3.2010. 3.3. However, neither the defendant Kantaben nor her advocate appeared before the Court and therefore, the stage of the hearing of the arguments of the defendant came to be closed by the concerned Civil Court. Ultimately, the suit was decreed in favour of the plaintiff on 31.3.2010. 3.3. The respondent-original plaintiff filed execution petition being Special Execution Application No. 18 of 2010 in the Court of learned Senior Civil Judge, Surat. When the notice was issued in the execution proceedings, a report was submitted by the bailiff of the Court that in the part of the land, in a house, one Jagrutiben Rameshbhai Patel was found and she had declared that she is a grand daughter of Kantaben - original defendant, who had died on 05.12.2009. Since, Jagrutiben Rameshbhai Patel claimed herself as grand daughter of the deceased Kantaben, the Executing Court directed the plaintiff to join her as opponent in the execution proceedings. Accordingly, she was joined as party - opponent in the execution proceedings. Though, summons was served, she did not appeared before the Court nor raised any objections with regard to the execution proceedings. Ultimately, the decree was executed through the Court Commissioner and a sale deed was executed in favour of the present respondent for part of the land admeasuring 822 sq.mtrs. 3.4. When the execution proceedings was pending, the present petitioners filed an appeal under Section 96 of the Code challenging the decree dated 31.03.2010 passed in Special Civil Suit No. 264 of 1993. An application for leave to appeal was filed since they were not party to the suit proceedings. An application under Section 5 of the Limitation Act was also filed contending the delay of 487 days in preferring the appeal. The respondent herein, who was original plaintiff, was joined as respondent/opponent in the appeal proceedings, The respondent submitted their written objections to the in application filed under Section 5 of the Limitation Act. 3.5. The learned Appellate Court, after considering the material on record, rejected the application filed by the present petitioners under Section 5 of the Limitation Act. 3.6. Hence, this petition. 4. Ms. 3.5. The learned Appellate Court, after considering the material on record, rejected the application filed by the present petitioners under Section 5 of the Limitation Act. 3.6. Hence, this petition. 4. Ms. Kalpana Brahmbhatt, learned advocate appearing for the petitioners, vehemently submitted that the petitioners have filed challenged the decree passed in the suit by way of filing appeal under Section 96 of the Code on various grounds, which go to the root of the suit proceedings and therefore, the learned Court ought to have condoned the delay of 487 days in challenging such decree. She would further submit that there is no huge delay in preferring the appeal. She would further submit that Balubhai and Kantaben had executed an agreement to sale with father of the petitioners i.e. Fakirchand Champaklal Shah on 10.01.1981 and huge amount was paid to them by different cheques. She would further submit that both of them had executed an irrevocable power of attorney on the same day in favour of the father of the petitioners with regard to the disputed property. She would further submit that the land does not belong to only Balubhai and Kantaben since the same is an ancestral property. The deceased Bhikhbhai, father of Balubhai had other legal heirs, who had executed the general power of attorney in favour of the petitioner No. 1 namely Bhadresh Fakirchand Shah with regard to the disputed property, who, sold the disputed property to himself and his wife by a registered sale deed on 22.04.2002. In view of the said registered sale deed, they became the registered property owner way back in the year 2002. She would submit that since the proceedings under the provisions of Urban Land Ceiling Act, 1976 were pending before various authorities, courts and before the Hon'ble Supreme Court, no proceedings for mutation of entries with regard to the registered sale deed could be taken by the petitioners though they had purchased the property. The petitioners came to know about passing of the decree only when they searched the material with regard to titles about the disputed land in the office of the Registrar before few days from the date of filing of the appeal as well as other proceedings. The petitioners came to know about passing of the decree only when they searched the material with regard to titles about the disputed land in the office of the Registrar before few days from the date of filing of the appeal as well as other proceedings. She would submit that when it was inquired in detail, it was found that a fraud was committed by the respondent by filing the suit only after the death of Balubhai, who had expired on 16.12.1991. She would submit that the suit remained pending since 1993 till 2010, and the decree was passed only subsequent to the death of Kantaben, who had expired on 05.10.2009. She would further submit that the respondent were aware about ULC proceedings in connection with the land in question, since a reference is mentioned in the unregistered agreement which alleged to have been executed by Balubahi in the year 1979. By taking me through the rojkam of the suit proceedings, she would submit that when the arguments were going on, during which, the notice was issued to the defendants, which was not served to the defendant Kantaben. She would further submit that the legal heirs of Kantaben should have been brought on record before passing the decree by the trial Court. She would submit that though, alleged agreement to sale was executed with regard to the entire land, the sale deed was executed though the Court Commissioner only for the part of the land i.e. 822 sq. mtrs. of land keeping aside the excess land declared under the Urban Land Ceiling Act, which suggests that respondents were aware about the proceedings going on and were waiting for the result of the Urban Land Ceiling proceedings. She, therefore, would submit that the decree, which has been obtained by a fraud against the dead person, can be challenged at any point of time and accordingly, the appeal is filed before the lower Appellate Court. She would further submit that by condoning the delay, the appeal is required to be heard on merits since there are sufficient reasons when the petitioners would be able to establish this contention raised by the lower Appellate Court. She would further submit that by condoning the delay, the appeal is required to be heard on merits since there are sufficient reasons when the petitioners would be able to establish this contention raised by the lower Appellate Court. In support of her case, she has relied upon the decisions in case of Dhurandhar Prasad Singh vs. Jai Prakash University and Others, (2001) 6 SCC 534 , in case of Ramchandra Singh vs. Savitri Devi and Others, 2004 (2) GCD 1247 (SC) and in case of A.V. Papayya Sastry and Others vs. Govt. of A.P. and Others, (2007) 4 SCC 221 . She would submit that considering the overall facts and circumstances of the case and also considering the above-mentioned decisions relied upon by her, the present petition may be allowed. 5. On the other hand, Mr. P.C. Kavina, learned Senior Advocate assisted by Mr. A.B. Munshi, learned advocate, has vehemently opposed this petition and submitted that it is not true to state that there is a delay of 487 days in challenge to the decree. He would submit that the revenue record with regard to the disputed land suggests that firstly, deceased Balubhai was shown as owner and occupier of the land and after his death, name of Kantaben i.e. wife of deceased Balubhai was mutated. No name has been mutated with regard to the so-called legal heirs, who are not before this Court nor before the lower Appellate Court claiming such rights. He would further submit that the plaintiff in the suit had filed an application under Order 39 Rule 1 & 2 of the Code for interim injunction against deceased Kantaben from transferring the property pending the suit. Before the lodgement of the suit, a public notice was issued at the instance of the present respondent about executing the power of attorney as well as agreement to sale in his favour. He would further submit that deceased Kantaben, who did appear through her advocate. When an application under Order 39 Rule 1 & 2 of the Code was allowed in favour of the present respondent-plaintiff, another public notice was issued in the newspaper on 06.06.1993 describing the details of the disputed land and names of the owners as well as earlier notice dated 22.12.1991. When an application under Order 39 Rule 1 & 2 of the Code was allowed in favour of the present respondent-plaintiff, another public notice was issued in the newspaper on 06.06.1993 describing the details of the disputed land and names of the owners as well as earlier notice dated 22.12.1991. He would further submit that if the father of the petitioners, who claimed that the agreement to sale as well as the power of attorney was executed by Balubhai and Kantaben, he should have raised objections to the public notice, since he was alive upto 1998. He would further submit that Fakirchand Shah i.e. father of the petitioners, neither raised any objections by issuing reply through an advocate nor appeared before the Civil Court in the proceedings of special civil suit. Therefore, it is presumed said Fakirchand was aware about the proceedings and stay granted by the Civil Court. He would submit that when the respondent-plaintiff apprehended that the said Kantaben may transfer the property, again a public notice was issued in the newspaper on 16.03.2009, describing the disputed land. Neither the petitioners, who claim to have purchased the land in the year 2002, came forwarded by raising any objections, nor appeared in the civil proceedings by filing an appropriate application for joining them in the proceedings claiming them as necessary and proper party to the suit proceedings. By taking me through all the notices, he would submit that all these notices, which have been issued since 1993 and 2009, neither the father of the petitioners nor the petitioners ever raised any objections and filed the appeal at a belated stage and therefore, it cannot be said that they came to know just few days before filing of the appeal. 6. He would further submit that there are no legal heirs of the deceased Balubhai and Kantaben since they had expired having no child. He would further submit that even other so-called legal heirs, as submitted by the learned advocate appearing for the petitioners are joined in the appeal. He would further submit that none of the legal heirs has claimed the rights over the property being the legal heirs nor in all the proceedings including the execution proceedings. He would submit further submit that in the execution proceedings, one Jagrutiben was served with a notice and when she claimed being related to Kantaben, she was joined as party respondent. He would submit further submit that in the execution proceedings, one Jagrutiben was served with a notice and when she claimed being related to Kantaben, she was joined as party respondent. She, however, did not appeared before the Court and ultimately, decree came to be executed. He would submit that the said decree has been executed subsequent to the filing of the appeal by the present petitioners. He would submit that in response to the application under Section - 5 of the Limitation Act, written statement was filed narrating all these facts and it was also declared that special execution petition No. 18 of 2010 is pending before the Competent Court. However, the petitioners have not cared to appear in the execution proceedings and raised any objections. He would, therefore, submit that petitioner No. 1, on the basis of the power of attorney, he himself and along with his wife purchased the disputed land, which creates doubts about the validity of the documents, which has been relied by the petitioners. 7. I have heard learned advocates appearing for the respective parties. From the record, it appears that the disputed property stood initially in the name of Balubhai, who had executed an irrevocable power of attorney in the name of the present respondents and agreement to sale in the year 1979. Subsequently, he himself and his wife had executed an agreement to sale in the year 1993. However, no proceedings were initiated by the father of the present petitioners or the respondents. 8. It is pertinent to note that the special civil suit was filed by the present respondent in the year 1993 against Kantaben, wherein, she appeared through her lawyer, however, did not file any written statement to the suit proceedings. When the notice was published at the instance of the respondent in the year 1991 i.e. prior to filing of the suit, the alleged power of attorney of the year 1989 was in existence in favour of Fakirchand. However, he did not raise any objection pursuant to the said notice. When the notice was published at the instance of the respondent in the year 1991 i.e. prior to filing of the suit, the alleged power of attorney of the year 1989 was in existence in favour of Fakirchand. However, he did not raise any objection pursuant to the said notice. When the application under Order 39 Rule 1-2 of the Code was granted in favour of the present respondent-plaintiff and a public notice was issued declaring the same with all the details of notice dated 06.06.1993, in my opinion, the father of the petitioners, who was alive, should have raised the objections and should have appeared before the trial Court in the suit proceedings. Therefore, in my opinion, total lethargy has been shown towards the legal proceedings pending in the Court by the so-called power of attorney holder as well as an agreement to sale. 9. It is pertinent to note that Kantaben and other family members as well as other two persons, who claimed the right over the disputed land, executed an irrevocable power of attorney in favour of petitioner No. 1, who got the land transferred in his own name along with his wife and got the sale deed registered without any notice. It is pertinent to note that the sale deed was executed in the year 2002, however, the petitioners have not taken any actions with regard to the mutation of their names in the revenue record. 10. When the notice was issued on 16.03.2009 by the respondent about the pendency of the suit that too when the Kantaben was alive, none of the so-called legal representatives and/or the petitioners, who executed the sale deed in the year 2002, came forwarded by raising the objections and/or any application before the suit proceedings. It is well settled principles of law that if a public notice issued, it is presumed that the facts published there in is known to all persons. On perusal of the application filed by the present petitioners under Section 5 of the Limitation Act, the petitioners have tried to explain the delay by stating only one sentence that "they came to know about the suit and the judgment and the order passed in the suit proceedings, when they tried to search the file of the property i.e. in the years 2011" which is, in my opinion, not believable. When the pendency of the proceedings has been declared time and again by the public notices, it is presumed that the affected party was aware about the suit. 11. It is also pertinent to note that the reply was filed by the present respondent to the application under Section 5 of the Limitation Act before the lower Appellate Court and it was brought to the notice about the pendency of the execution petition, the petitioners neither appeared before the execution Court nor raised in objection. Ultimately, the decree has been executed through Court Commissioner that too prior to passing the decision by the lower Appellate Court. 12. In my opinion that the judgement creditor (respondent herein) has taken appropriate care by joining Jagrutiben Rameshbhai Patel in the execution proceedings. She did not appear before the Court and not raise any objection. I am, therefore, of the opinion that there is no other reasons for the executing Court to pass appropriate order in compliance with the decree, which was never stayed by any of the Court. The decision relied upon by the learned advocate appearing for the petitioners in case of Dhurandhar Prasad Singh vs. Jai Prakash University and Others and Ramchandra Singh vs. Savitri Devi and Others and A.V. Papayya Sastry and Others vs. Govt. of A.P. and Others (Supra), would not be applicable since the same are on merits. 13. Even while dealing with the application under Section - 5 of the Limitation Act, the Court has to examine whether the applicant is right in stating correct days of delay, which I found not satisfactorily since at least, the petitioners and their father were aware about the filing of the suit and pendency of the suit itself. Hence, the present petition is merit-less and accordingly, the same stands disposed of. 14. Interim relief granted earlier to continue stands vacated. 15. Learned advocate appearing for the petitioners requests to extend further period of the interim relief granted earlier and the same is hereby refused in view of the above facts. Disposed off.