VIJAY SINGH Vs. MAHESH CHOURASIYA

JUDGEMENT

(1.) Appellant has preferred this misc. appeal under Order 43, Rule 1 (d) of the Code of Civil Procedure, being aggrieved by the impugned order dated 5.12.2006 passed by the First Additional District Jude, Raisen (M.P.) in M.J.C. No. 15/2006 whereby the application of appellant filed under Order 9, Rule 13 of Code of Civil Procedure (for short 'C.P.C.') has been dismissed.

(2.) Facts of the case are that the respondent filed a Civil Suit No. 1- B/2004 against the appellant before the 1st Additional District Judge, Raisen (M.P.) for recovery of Rs. 1,89,000.00.Summons were issued against the appellant by registered post as well as ordinary mode. Learned Trial Court proceed ex-parte against the appellant on 17.2.2005 after recording the evidence of respondent/plaintiff. Trial Court decreed the suit ex-parte on 15.6.2005. Thereafter, appellant filed an application under Order 9, Rule 13 of C.P.C. for setting aside the ex-parte decree dated 15.6.2005 contending that appellant came to know about the attachment of warrant issued by the First Additional District Judge. Raisen in Execution Case No. 1-B/2005 for recovery a sum of 2,19,083.00 on 2.6.2006 when he had gone to Gohargan' in connection with a criminal case. It is further pleaded that appellant had no knowledge of aforesaid suit because no summons was served as well as there was no refusal made by him in a registered envelope. A forged report was managed by respondent with connivance of postman and Trial Court without examining the said report of summons, duly served against the appellant, proceeded ex-parte. It is further pleaded that the appellant when got the knowledge about the ex-parte decree only on 2.6.2006 then he immediately filed an application for certified copy of the order on 3.6.2006, which was received on 14.6.2006. Since summer vacation of Civil Courts was up to 16.6.2006 and after that usual holidays like Saturday and Sunday were fallen, the Court was closed. therefore, he filed an application under Order 9 Rule 13 of the C.P.C. on 22.6.2006 alongwith the application under section 5 of the Limitation Act, in which additionally pleaded that applicant/appellant was ill.

(3.) By filing reply before the Trial Court. respondent denied the contentions of the applications but Trial Court has passed the impugned order. Hence this appeal.