JASWANT AND ANOTHER Vs. GENDALAL

JUDGEMENT

(1.) This Misc. Appeal under Order 43, Rule 1 (d) of Code of Civil Procedure, 1908 (hereinafter referred to as 'Civil Procedure Code') has been preferred against the Order 24.1.2011 passed in Misc. Civil Case No. 04/2010 by the Court of Second Additional District Judge, Khandwa by which application of appellant under Order 9, Rule 13 Civil Procedure Code for setting aside the ex parte judgment and decree passed in favour of respondent and against the defendant/appellant No. 1 in Civil Suit No. 39-A/2007 dated 13.10.2009 passed by District Judge, Khandwa, has been rejected.

(2.) In short, the facts of the case are that respondent plaintiff Gendalal instituted a suit for Specific Performance of Contract, relating to agricultural land bearing Khasra No. 127/3 area 4.73 Hectares situated in village Ranjhni Raiyyat Tahsil Khandwa against Defendant/appellant No. 1, Jaswant on the basis of Sauda Chitthi dated 13.10.2006. Trial Court proceeded exparte against appellant/ defendant No. 1 on 8.9.2007 on the basis that the summons to the appellant No. I /defendant was served through Kriparam, appellant No. 2 who resides jointly with appellant No. 1. After proceeding ex parte, ex parte judgment and decree was passed by Trial Court on 13.10.2009. Execution proceedings were started and summons were issued to appellant No. 1. After service, the case was fixed on 10.3.2010. On service, the appellant No. 1 got knowledge of the fact that ex parte decree and judgment had been passed against him on 13.10.2009, so, the appellants moved this application for setting aside the ex parte judgment and decree under Order 9, Rule 13 Civil Procedure Code which was registered as Misc. Civil Case No. 4/2010, in which after taking evidence, learned Second Additional District Judge, Khandwa after hearing the parties and appreciating the evidence, on 24.10.2011 rejected the application for setting aside the ex parte decree, hence this appeal has been preferred by the appellants before this Court, on the following grounds:

(3.) I have heard both the sides and perused the record/ documents available in the cases.