BANSHIDHAR GOYANKA Vs. ALOK KUMAR

JUDGEMENT

(1.) This revision under section 115 of the Code of Civil Procedure has been preferred by plaintiff against the order dated 30-10-2009 passed by trial Court by which application preferred by non-applicant No. 1/defendant No. 20 under Order 9, Rule 13 read with section 5 of the Limitation Act has been allowed and ex parte decree passed in favour of applicant/plaintiff has been set aside.

(2.) Facts, briefly stated, leading to filing of the instant revision are that applicant/plaintiff instituted a suit seeking relief of declaration, partition and possession sometime in the year 1993 which was registered as Civil Suit No. 136-A/1993. During pendency of the civil suit, defendant No. 20 purchased part of the suit property from defendant No. 1. Accordingly, trial Court in the year 1999 directed the applicant/plaintiff to implead non-applicant No. 1 as defendant in the civil suit. The application for impleadment of defendant No. 20 was allowed vide order dated 4-5-1999 and plaintiff was directed to pay the process fee by ordinary post as well as by registered post with acknowledgement due. Summons were issued to defendant No. 20 on 17-5-1999 for his appearance before trial Court on 25-6-1999. However, on 25-6-1999 the Presiding Officer was on leave and in the absence of Presiding Officer, the proceedings in the suit were adjourned to 1-7-1999. On 1-7-1999 the Presiding Officer proceeded ex parte against defendant No. 20 and eventually an ex parte decree was passed on 29-9-2006 in favour of the applicant/plaintiff. Trial Court on 10-11-2006 sent copies of the ex parte judgment and decree to the Collector, Katni for execution of the decree. The Collector made over the proceedings to Tahsildar who thereupon issued notices to defendants in the suit for their appearance on 11-12- 2006. The notice of the proceeding before Tahsildar was served on defendant No. 20 on 4-12-2006. It is alleged that defendant No. 20 entered appearance through his counsel by executing Vakalatnama and also filed an application for stay.

(3.) Non-applicant No. 1 filed an application on 6-4-2007 under Order 9, Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree which was registered as M.J.C. No. 6/2007. By order dated 26-2-2008 trial Court dismissed the application preferred by non-applicant No. 1 against which he preferred an appeal forming subject-matter of M.A. No. 7/2008. The appeal preferred by non-applicant No. 1 was allowed by lower Appellate Court vide order dated 8-8-2008. The applicant/plaintiff challenged the validity of order dated 8-8-2008 which was registered as C.R. No. 351/2008. However, on 30-8-2009, the applicant withdrew the revision preferred by him.