REVANASIDDAPPA JEWARGI Vs. MALKAJAPPA

JUDGEMENT

(1.) - On behalf of the respondent to this appeal, an application has been filed for vacating the stay that has been granted by this Court. The entire controversy that is involved in this appeal can best be resolved once and for all rather than through the piece meal orders. I find that the appeal is directed against an ex parte decree passed by the trial Court on 21-7-1993 in a suit instituted by the present respondent. The dispute related to certain immoveable property and admittedly, the summons had been served on the defendants who failed to appear before the Court for which reason the learned trial Judge decreed the suit on 21-7-1993. On 24-8-1993, i.e., after the lapse of 34 days, an application under Order 9, Rule 13, C.P.C., was filed by the defendants who are the present appellants for setting aside the ex parte decree. The case made out was that the parties are related to each other, that after the service of the summons, a Panchayath was held in the village and that the elders had advised the plaintiff to withdraw the suit which he is alleged to have agreed to do and consequently, the defendants submitted that they did not appear before the Court, because they were under the assumption that the suit was withdrawn. It was shortly after the decree was passed that they came to know that the case had been decreed against them.

(2.) The original plaintiff who is the respondent to this appeal, denied that any such compromise talks had taken place or for that matter, that he had agreed to withdraw the suit. It was his contention that the summons having been duly served and the decree having been passed, that no valid cause had been shown for setting aside that decree. The second contention taken up was that the lime period of 30 days had elapsed since the passing of the decree and that the application for setting aside was barred by limitation and since no application had been filed for condonation of delay, that the application itself was liable to be dismissed. The learned trial Judge after recording the evidence of one witness on each side, heard the learned advocates and passed an order dismissing the application and confirming the decree. The principal ground on which the learned trial Judge proceeded was that an application under Order 9, Rule 13 is not specifically provided for under Section 12 of the Limitation Act and that, some of the Courts have taken the view that such an application does not qualify for exclusion of time as far as the copying period is concerned. The view taken by the trial Court was that there is no provision for condonation of delay as far as this category of application is concerned and that consequently, the same was liable to be rejected. It is this order that is the subject matter of the present appeal.

(3.) On behalf of the appellant, it is submitted that in an application for setting aside the ex parte decree, all that is required to be done is that just and valid cause has to be put forward for the non-appearance. It is contended that the delay was marginal in so far as it was only 3 days, but more so, that if the copying period of 7 days is excluded, that the application was in time and that, therefore, there was no need to file any separate application for condonation of delay. It is also contended that the view taken by the learned trial Judge that it is not permissible to condone the delay assuming there was some such delay is untenable in law.