ANITA @ ANISA KASVE Vs. DHARMENDRA

JUDGEMENT

(1.) THIS appeal has been preferred against the order dated 11 -11 -2008 passed by Shri Sanjay Kumar Jain, Second Additional District Judge, Fast Track, Court Harda in MJC No. 3 of 2006.

(2.) SHORT facts involved herein are that the applicants/appellants submitted an application under Order 9, Rule 13 of Civil Procedure Code with allegations that the plaintiff/respondents obtained a decree for eviction in a fraudulent manner knowing fully well that the decree put into execution was not obtained against the applicants/appellants.

(3.) AFTER the death of Shrikrishna Kasve, his legally wedded wife and children (i.e. the respondents herein), instituted a Civil Suit bearing No. 25 -A/2005 in the Court of Second ADJ. (Fast Track Court) Harda, for possession and mesne profits which was decreed ex parte in their favour. The decree was put into execution, when it is alleged that the present appellants came to know for the first time about the decree having been passed against them in ex parte manner on 10 -9 -2005. Thereafter, an application under Order 9, Rule 13, Civil Procedure Code was submitted on 15 -2 -2006 on the ground that the appellant No. 1 is widow of late Shrikrishna Kasve and appellant No. 2 is daughter of Shri Shrikrishna Kasve, whereas, they were wrongly described in the Civil Suit as wife of Hamid Khan Musalman and daughter of Hamid Khan respectively. In view of the wrong description, they could not be served. It is stated in the application that the appellants were described in the Civil Suit in wrong manner knowing fully well that they were respectively wife and daughter of Shrikrishna Kasve. An ex parte decree was obtained in fraudulent manner and the same is liable to be set aside. An application under section 5 of the Limitation Act was also submitted on identical grounds. It was stated that on giving appearance for the first time in the execution case on 18 -1 -2006, the applicants/appellants came to know about the aforesaid ex parte decree having been passed against them. Certified copy was obtained on 31 -1 -2006 and, thereafter, the applications for setting aside as well as condonation of delay were submitted on 15 -2 -2006. The delay is, therefore, condonablc.