VIDYA DEVI Vs. RAMATI DEVI

JUDGEMENT

(1.) By this petition filed under Article 227 of the Constitution of India, the Petitioner seeks quashing of the order dated 4.9.2002, passed by the learned Additional District Judge whereby the application of the Petitioner filed by her under Section 5 of the Limitation Act was dismissed.

(2.) Before I proceed to deal with the contentions raised by the counsel for the parties, it would be appropriate to state the brief background of facts of the case.

(3.) A suit for specific performance was filed by the Respondent against the Petitioner seeking specific performance of the agreement to sell dated 24.9.1987. The said suit was decreed ex-parte by the learned trial court on 13.5.1988, but subsequently on the application moved by the Petitioner the said ex-parte decree was set aside by the learned trial court vide order dated 1.11.1988. After the said ex-parte decree was set aside, the Petitioner had filed written statement and thereafter the issues were framed by the learned trial court. But when the case was fixed for evidence of the Respondent, the same was dismissed in default by the learned trial court due to the non appearance of the Respondent vide order dated 20.8.92. A restoration application was moved by the Respondent to seek restoration of the said suit and in the said application the Petitioner had appeared on 4.9.1995. Since nobody appeared from the side of the Respondent, the same resulted in dismissal of her application. The Respondent then moved application under Order 9 Rule 9 CPC. The said application moved by the Respondent was restored by the learned trial court without directing notice of the same upon the Petitioner. On 24.7.1996 the Petitioner was proceeded ex-parte in the said application and the suit was restored by the learned trial court on the same day. Once again on 14.8.1996, the suit was dismissed in default and yet another application was moved by the Respondent on 22.8.96 seeking restoration of the suit. The said suit was again restored by the learned trial court on 4.12.96 and the matter was adjourned by the learned trial court for ex-parte evidence. On 20.12.96, the evidence was adduced by the Respondent and the learned trial court heard final arguments on the same day and thereafter reserved the matter for orders. Vide order dated 8.1.97, an ex-parte decree for specific performance was passed by the learned trial court against the Petitioner and in favour of the Respondent. After passing of the said judgment and decree an execution application was moved by the Respondent and without directing any notice upon the Petitioner, the learned trial court directed appointment of Local Commissioner through whom the sale deed was executed and registered in favour of the Respondent. When the Petitioner learnt about the said ex-parte judgment and decree dated 8.1.97 on 24.12.1999, she filed an application under Order 9 Rule 13 Code of Civil Procedure along with an application under Section 5 of the Limitation Act. The said application filed by the Petitioner under Section 5 of the Limitation Act was dismissed by the learned trial court vide impugned order dated 4.9.2002 and as a result of the dismissal of the said application, the application moved by the Petitioner under Order 9 Rule 13 Code of Civil Procedure was also dismissed.