SHIVRAJ SINGH CHAUHAN Vs. RAJENDRA KUMAR

JUDGEMENT

(1.) This Misc. Appeal is directed against an order dated 26/2/07 passed by the court of Fourth Additional District Judge, Morena(M.P.) in MJC No. 1/06, rejecting thereby an application under Order 41 Rule 21 of C.P.C.

(2.) Briefly stated facts are that the plaintiff/respondent instituted Civil Suit No.ll-B/05 for recovery of amount of Rs.49,000/-(Rs. Forty nine thousand only) wherein the defendant/appellant did not appear. Suit was dismissed ex parte on 5/8/05. Aggrieved by it, plaintiff/respondent submitted regular Civil Appeal No.1-B/05 wherein notice was issued to defendant/appellant which came back with an endorsement that the defendant declined to accept it. Ultimately, appeal was allowed in ex parte manner and the suit stood decreed vide judgment and decree dated 16/1/06. Thereafter, the defendant/appellant submitted an application for re-hearing under Order 41 Rule 21C.P.C., on 20/3/06 along with an application under section 5 of the Limitation Act for condonation of delay. It was inter alia alleged that the notice in the appeal was neither tendered to the appellant nor was refused by him. This application was opposed. Lower appellate court after recording the evidence, dismissed the applications under Section 5 of the Limitation Act as well as under Order 41 Rule 21 C.P.C. Aggrieved by the same, present appeal has been preferred.

(3.) Shri Soni,learned counsel for the appellant contended that the appellant was not served with the notice of appeal. Accordingly, it is contended that the appeal was liable to be re-heard.