KAMLESH KUMAR AGRAWAL Vs. ANUP KUMAR MARTIN

JUDGEMENT

(1.) This Miscellaneous Appeal has been preferred by the Appellant/Defendant under Order 43 Rule 1(d) of the Code of Civil Procedure 1908 (hereinafter referred to as the 'CPC') questioning the legality and validity of the order dated 30.03.2016 passed by 3rd Additional District Judge, Raipur (C.G.) in Miscellaneous Judicial Case No.05/2013, by which, the applications filed by the appellant under Section 5 of the Indian Limitation Act, 1963 (henceforth, the Act of 1963) as well as under Order 9 Rule 13 of the CPC have been rejected.

(2.) Briefly stated the facts of the case are that the plaintiff/respondent instituted a suit claiming recovery of amount of Rs.4,02,833.08/- against the appellant, which was registered as Civil Suit No.33-B/2011. The appellant/defendant was proceeded ex parte in the said suit on 09.01.2012 as despite substituted service, he did not appear and after recording plaintiff's evidence, the trial Court decreed the suit ex parte on 15.02.2012.

(3.) Being aggrieved with the aforesaid ex parte judgment and decree, the appellant/defendant moved an application on 23.09.2012 under Order 9 Rule 13 of the CPC along with an application for its condonation of delay as provided under Section 5 of the Act of 1963 by submitting inter alia, that the appellant was neither aware regarding the filing of the said suit nor the said ex parte decree passed therein and came to know about the delivery of the said decree for the first time only on 18.09.2012, when he received the notice from the executing court. The plaintiff/respondent in his reply has denied the said fact.