(1.) Heard learned Counsel for the petitioner Sri Sanjeev Singh and Sri A.K. Singh for the respondent. A suit for specific performance was filed by the respondent-plaintiff which was decreed ex parte on 23rd July, 1998. The decree was put into execution. During the execution proceedings, the petitioner-defendant contends that she came to know thereof through a notice (Suchna Patra). The knowledge therefore disclosed by the petitioner about the passing of the ex parte decree is on an inspection made on 19th October, 2001 whereafter it is also admitted to the petitioner that she put in appearance in the execution proceedings on the very next day on 20.10.2001. Sri Sanjeev Singh submits that the petitioner had no knowledge of the status of the relief claimed and the facts about the suit as the file was not available, and after efforts she came to know about the contents of the proceedings only on 17th November, 2001.
(2.) Accordingly, the application under Order IX, Rule 13 to set aside the ex parte decree was moved on 20.11.2001. Sri Singh submits that this application was therefore well within time and even if the Court found that it was beyond the time prescribed from the date of knowledge as held by the Court below, then the Court ought to have granted time to the petitioner to file a better affidavit to explain the delay. He therefore contends that the rejection of the application on a technical ground militates harshly against the petitioner and therefore this Court in the exercise of jurisdiction under Article 226 of the Constitution should proceed to condone the said delay and allow the matter to proceed on merits after setting aside the impugned orders.
(3.) Learned Counsel for the respondent submits that in view of the provisions of section 3 read with Article 123 of the Indian Limitation Act the date of knowledge has to be either the date of the ex parte decree or the date of knowledge of the said ex parte decree. In the instant case admitting that the petitioner came to know of the ex parte decree on 19th October, 2001, the application was admittedly moved before the expiry of the period of limitation i.e., after 32 days and as such the application had to be rejected in view of the provisions of section 3 of the Indian Limitation Act. He has relied on the Apex Court decision in the case of Mahavir Singh v. Subhash and others, 2008 70 AllLR 612