SARDAR SUJAAN SINGH Vs. DAMRUDHAR NAI

JUDGEMENT

(1.) This writ petition under Article 227 of the Constitution of India is directed against the impugned order dated 25 th June, 2019 passed by the District Judge, Raigarh in Civil MJC No.8/2018, by which the defendant's application under Section 5 of the Limitation Act, 1963 has been allowed and thereby the application under Order 9 Rule 13 read with Section 151 of the CrPC has also been allowed and consequently, the ex parte judgment and decree dated 17-2-2010 passed in Civil Suit No.14-A/2009 has been set aside and the suit filed by the petitioner / plaintiff has been restored to its original number for hearing and disposal in accordance with law.

(2.) Mr. B.P. Sharma, learned counsel appearing for the petitioner herein / plaintiff, would submit that the trial Court is absolutely unjustified in holding that there is sufficient cause for condoning the delay in filing the application under Order 9 Rule 13 of the CPC, as the defendant was already served in the main civil suit and in the execution proceeding filed on 28-6-2010 by the plaintiff, the defendant was served with the notice of execution on 9-4-2013 and despite service, he remained absent and thereafter from time to time, he appeared through his counsel, but the application under Order 9 Rule 13 of the CPC was filed on 1-2-2018 in which it was mentioned that the suit was filed on 1-7-2009 and he came to know about the decree after obtaining the copy of the order sheet and for the first time he came to know about the execution proceeding on 4-12-2017 and on 4-1-2018, he came to know about the ex parte judgment and decree. Copies of the order sheets filed by the plaintiff would show that the defendant was duly served with the summons of the suit as such, there is in ordinate delay in filing the application for condonation of delay which has not been condoned and therefore the impugned order passed by the learned executing court deserves to be set aside.

(3.) Mr. Ishwar Jaiswal, learned counsel appearing for respondent No.1 herein / defendant, would support the order impugned.