SHIV SARAN LAL GUPTA Vs. USHA KIRAN GUPTA

JUDGEMENT

(1.) Leave granted. The application for bringing the legal representatives of the deceased second Respondent allowed and the legal representatives are brought on record. Heard the Learned Counsel. Respondents 1 and 2 filed a suit against the Respondents 3, 4 and the Appellants for declaration of title and consequential injunction. The parties are closely related Plaintiff No. 1 and Defendants 1 and 3 are brothers. Plaintiff No. 2, Defendants 2 and 4 are the wives of Plaintiff No. 1, Defendant Nos. 1 and 3 respectively. The dispute related to properties left behind by the parents of the three brothers. On 31.10.1998, the suit was decreed ex parte. The Appellants herein (defendants 3 and 4 in the suit) filed an application under Order IX, Rule 13 of Code of Civil procedure, 1908 ('Code of Civil Procedure', for short) for setting aside the ex parte decree, with an application under Section 5 of the Limitation Act, 1963 for condonation of delay, on 25.5.1999, alleging knowledge of the ex parte decree on 23.5.1999. They also filed an application on 1.7.1999, for declaring the ex parte decree a nullity, on the ground that it was the result of fraud. They alleged that the Respondents 1 and 2 had misused an old vakalatnama signed by them several years prior to the suit when parties were joint, to make it appears that Appellants had knowledge and entered appearance.

(2.) It is stated that Respondents 3 and 4 herein (defendants 1 and 2) also subsequently filed a similar application under Order IX, Rule 13, Code of Civil Procedure for setting aside the ex parte decree against them and that application was allowed.

(3.) On 28.5.2007, the Trial Court dismissed the application for condonation of delay a also the application under Order IX, Rule 13 of Code of Civil Procedure filed by the Appellants on the ground that they had knowledge of the decree much earlier. The Appellants filed an appeal before the High Court and that was dismissed as not maintainable on 24.7.2008. The High Court was of the view that the Appellants ought to have filed a revision against the dismissal of the application under Section 5 of the Limitation Act, instead of filing an appeal against the dismissal of the application under Order IX, Rule 13, Code of Civil Procedure. The said order is challenged in this appeal by special leave.