RAM CHANDRA Vs. RADHEY SHYAM

JUDGEMENT

(1.) HEARD learned counsel for the appellant.

(2.) THIS appeal arising out of dismissing an application filed by the applicant as 6-ga-2 under Section 5 of the Limitation Act. It appears that respondent filed a suit for cancellation of sale deed that was dismissed vide judgment and decree dated 16.11.1996. Plaintiff respondent filed an appeal as appeal No.440 of 1996, which was allowed ex parte vide its judgment and order dated 1.12.1998. The application under Order 41 Rule 1 CPC was filed by applicant on 18.12.2006 for setting side ex parte decree dated 1.12.1998 with an application under Section 5 of Limitation Act. Explanation given in the application is that he has not received any notice and therefore, he could not appeared before the Court. Further, an averment has been made that the publication was done in the local newspaper, which is not widely circulated at Maumbai. As the applicant is presently residing at Mumbai, therefore, he was having no knowledge, therefore, in such circumstances, the ex parte decree may be set aside.

(3.) THE appellate Court on the basis of pleading of the parties has recorded a fining that in original suit No.173 of 1993,the appellant in the present application was defendant and the address given in the plaint was Kharshan, he appeared in the suit and the suit was decided on merits. Though, now he mentioned his address as Kharshan Kala, a finding to that effect has also recorded that defendant appellant has not rebutted such finding that how he has appeared before the Court.