NARENDRA KUMAR Vs. PRADEEP SAXENA

JUDGEMENT

(1.) Heard Sri K.M. Garg, learned Counsel for the Appellant.

(2.) This first appeal from order has been filed against the order dated 14.12.2010 passed in Misc. Case No. 26 of 2010 arising out of S.C.C. Suit No. 45 of 2005 by the Additional District Judge, Court No. 7, Ghaziabad, whereby the application under Section 5 of the Limitation Act as also the application under Order IX, Rule 13, Code of Civil Procedure filed by the Appellant has been rejected.

(3.) Learned Counsel for the Appellant has at the outset submitted that the Appellant was not a party in the Suit No. 45 of 2005, which was decreed against Brijendra Kumar who is admittedly the brother of the Appellant Narendra Kumar. At the execution stage, the Appellant filed an application for recall of the judgment and decree dated 12.7.2010 alongwith an application for condonation of delay. He submits that by the impugned order while considering his application under Order IX, Rule 13, Code of Civil Procedure, the Court has non suited the Appellant on merits as well as by not condoning the delay. He states that the Appellant is in possessions of the shop in dispute and therefore, he was a necessary party in the suit and since he was not made a party, the decree cannot be executed against him.