YASHODA DEVI Vs. SPECIAL/ADDITIONAL DISTRICT JUDGE PRATAPGARH

JUDGEMENT

(1.) HEARD learned Counsel for the parties.

(2.) BY this petition, the petitioners have challenged the orders dated 10. 11. 2004 and 16. 5. 1998 passed by opposite party No. 1 contained in Annexure nos. 1 and 2 of the writ petition. Vide order dated 16. 5. 1998 the revision filed by opposite party No. 2 has been allowed by the Court below and vide order dated 10. 11. 2004 the review application moved by the petitioners has been rejected.

(3.) THE reliefs sought in the writ petition rest on the allegations that the respondent No. 2 instituted a suit against the petitioners for streedhan and ornaments which was registered as Regular Suit No. 185 of 1990. After deemed or substituted service on petitioners (defendants in suit) the suit was proceeded ex-parte and an ex-parte decree was passed in favour of respondent No. 2 on 23. 3. 1991 and against the petitioners. It is stated that when the notice of execution of decree was served upon petitioner No. 3 in the last week of May, 1992, asking him to file objection by 4. 7. 1992 against the said decree, then he came to know about the said decree. Thereafter, he approached the Civil Court for enquiry of said decree on re-opening of the Civil Court after summer vacation on 1. 7. 1992 and contacted a Counsel and informed about the said notice, then counsel has told him about the said ex-parte decree on 1. 7. 1992 but he further told that its detail can only be known after inspection of the concerned file. The counsel directed the petitioner No. 3 to bring vakalatnama of petitioner Nos. 1 and 2 and asked him to contact again before 4. 7. 1992. The petitioner No. 3 Dev kumar returned back to home and after getting vakalatnama from petitioner nos. 1 and 2 contacted his Counsel again on 3. 7. 1992 in the night and came to know about the details of ex-parte decree on 4. 7. 1992 through their Counsel, who thereupon moved an application under Order IX, Rule 13, C. P. C. for setting aside the ex-parte decree on 4. 7. 1992 and also moved objection against the execution proceedings. The said application was duly supported by an affidavit and opposite party No. 2 Smt. Mridula Devi also filed objection against the same. The evidence was recorded in support of the application and P. W. 1 babu Lal E. D. M. P. Post Office concerned was examined on oath on behalf of Mridula devi and Smt. Yashoda Devi, petitioner No. 1 was examined as defence witness. After hearing the parties the Trial Court allowed the application of the petitioners and set aside the ex parte order and decree dated 23. 3. 1991 passed by Additional Civil Judge, Pratapgarh by awarding costs of Rs. 50/- on 18. 5. 1994. Certified copy of the order dated 18. 5. 1994 setting aside ex parte order dated 23. 3. 1991 is on record as Annexure No. 4. Feeling aggrieved against the aforesaid order the respondent No. 2 preferred a revision and accepted the costs also. The Revisional Court vide order dated 16. 5. 1998 has set aside the order passed by the Trial Court holding that the application for setting aside ex parte decree under Order IX, Rule 13 has been moved beyond three days period of limitation prescribed for moving such application and no application for condoning the delay was moved along with the said application before the trial Court, as such application for setting aside ex-parte decree could not be entertained and allowed without condoning the delay. Feeling aggrieved against the aforesaid order the petitioners have moved a review application which too was rejected by the Revisional Court below vide order dated 10. 11. 2004, hence this petition.