KURESHA KHATUN Vs. MOINUDDIN ANSARI

JUDGEMENT

(1.) THIS application is at the instance of the defendants/judgment debtors and is directed against the order no.55 dated July 7, 2007 passed by the learned Civil Judge (Junior Division), Second Court, Howrah in Misc. Case No.25 of 2002 arising out of the Title Suit No.116 of 2000 thereby rejecting application under Section 5 of the Limitation Act.

(2.) THE plaintiff/opposite party herein instituted a suit being T.S. No.,116 of 2000 before the learned Civil Judge (Junior Division), Howrah for eviction against the predecessor-in-interest of the petitioners. In that suit, the opposite party got an ex parte decree. On getting an information by search on June 6, 2002, the petitioners got knowledge of the ex parte decree passed against them. THEreafter, they contacted their advocate and then an application under Order 9 Rule 13 of the C.P.C. was filed on June 14, 2002. At that time, the mistake was detected by the computer department that the application was barred by limitation. THEreafter, the petitioners filed an application under Section 5 of the Limitation Act praying for condonation of the delay in filing the said misc. case. THE opposite party filed an objection against the said application under Section 5 of the Limitation Act. Both the parties adduced evidence on the application under Section 5 of the Limitation Act. By the impugned order, the learned Trial Judge has dismissed the application under Section 5 of the Limitation Act. Being aggrieved, this application has been preferred.

(3.) THE petitioners have contended that they have no knowledge of the institution of the suit but on the basis of searching slip on June 6, 2002 they came to know that the said suit was decreed ex parte. THEreafter, they filed the application for setting aside the ex parte decree only on June 18, 2002. In the meantime, 255 days have passed. That is why, they filed an application for condonation of the delay of 255 days.