SATI BAI NISHAD Vs. SANTOSH KESARI

JUDGEMENT

(1.) This appeal has been preferred by the Applicant, who is the widow of the original Defendant No.1 - Bhikham Prasad, under Order 43 Rule 1(d) of Code of Civil Procedure, 1908 (hereinafter referred to as the 'CPC') questioning the legality and propriety of the order dtd. 16/8/2019 passed by Fourth Additional District Judge, Durg (C.G.) in M.J.C. No.167/2019, whereby the learned Court below has refused to set aside the ex parte judgment and decree dtd. 31/3/2016 passed in Civil Suit No.56-A/2014, while rejecting the application filed under Order 9 Rule 13 of CPC. The parties to this appeal shall be referred hereinafter as per their description before the Court below.

(2.) According to the learned counsel for the Applicant, the finding of the Court below rejecting the application filed under Order 9 Rule 13 of CPC by holding that the Applicant has failed to assign any reason for non appearance of her husband on 5/11/2015 is apparently contrary to law. It is contended further that the Applicant's husband was not aware regarding the institution of the said suit as the summons of it was neither served upon him nor any counsel was engaged by him. Further contention of him is that since the reasons assigned in the application was not controverted by the Plaintiff/Non-applicant No.1, therefore, under such circumstances, the Court below ought not to have rejected the said application for setting aside the ex parte judgment and decree dtd. 31/3/2016 passed in C.S. No.56-A/2014.

(3.) On the other hand, learned counsel appearing for Non-applicant No.1/Plaintiff has supported the order impugned as passed by the Court below.