TEHAROONCHAND Vs. SURAJMULL NAGARMULL

JUDGEMENT

(1.) Petitioner Teh-roonchand's application (Misc. Case No. 17 of 1981) under Order 9, Rule 13 of the Civil P. C. (hereinafter referred to as the 'Code') for setting aside the ex parte decree in Title Suit No. 264 of 1978 was dismissed by the learned Munsif, 2nd Court, Alipore on Aug. 31, 1982, The appeal (Misc. Appeal No. 545 of 1982) pre-ferred by the petitioner was dismissed by the learned Additional District Judge, 4th Court, Alipore on Feb. 12, 1983. Being aggrieved, the petitioner has preferred the present revisional application.

(2.) The opposite party Messrs. Surajmull Nagarmull as plaintiff filed Title Suit No. 264 of 1978 for eviction of the petitioner. The said suit was decreed ex parte on Mar. 25, 1980. On Feb. 13, 1981 petitioner filed an application under Order 9, Rule 13 read with Section 151 of the Code alleging that no summons had been served upon him. He came to know of the ex parte decree on Feb. 12, 1981. Petitioner prayed for setting aside the decree. In the written objection the opposite party contended that summons had been duly served on the petitioner and as the petitioner failed to appear the ex parte decree was passed against him. The opposite party further contended that the petitioner resisted the Court bailiff when the latter went to deliver possession on June 17. 1980. As such the petitioner was at least aware of the ex parte decree from the said date. The application was barred by limitations.

(3.) The learned Munsif held that summons was served upon the petitioner and he had failed to prove that he was prevented by sufficient cause from appearing when the suit was called on for hearing. The appiica ion was also barred by limitation. On appeal, the learned Additional District Judge found that the petitioner came to know of the ex parte decree on June 17, 1980 and the application was consequently barred by limitation.