DURGADAS Vs. JAYSHRI HEMRAJ AGRAWAL

JUDGEMENT

(1.) This second appeal arises out of the order dated 09.12.2009 in Miscellaneous Civil Application No. 201/2000 passed by the learned Principal District Judge, Amravati, by which the delay caused in filing regular civil appeal challenging the judgment and decree dated 04.09.1998 passed in R.C.S. No. 140/1997 is came to be rejected. This Court has admitted the appeal vide order dated 10.03.2010 by framing substantial questions of law.

(2.) Heard both sides exhaustively on the appeal and perused necessary documents. It would be apposite on my part to recapitulate the brief history for the purpose of quick appreciation. Initially, respondent had filed Regular Civil Suit No. 140/2007 in the Court of Joint Civil Judge, Junior Division, Chandur Railway for specific performance of contract. The said suit was came to be decreed ex parte vide judgment and order dated 04.09.1998. Consequently, the execution proceeding was filed to execute ex parte decree. During the pendency of execution proceeding, the appellant (original defendant) has preferred an application under the provisions of Order IX Rule 13 of the Code of Civil Procedure for setting aside ex parte decree.

(3.) Since there happened to be delay in preferring said application, it was accompanied with application for condonation of delay which was came to be rejected by learned trial Court. Rejection of delay condonation application was challenged by appellant/defendant in Writ Petition No. 312/2004 which was allowed by this Court vide order dated 27.04.2004. In consequence, the proceedings under Order IX Rule 13 of the Code of Civil Procedure was heard on merit and was came to be rejected by the trial Court vide order dated 29.08.2008. The appellant had challenged the said order in M.C.A. No. 47/2008, but could not succeed.