DHOBA NAIK Vs. SABI DEI

JUDGEMENT

(1.) THE petitioners filed a suit (O. S. No. 122 of 1969) against the opposite party defendant for declaration of title confirmation of possession and permanent injunction. The opposite party having been served with a notice of the suit appeared and filed her written statement. By order dated 10-3-1971 the opposite party was set ex parte. The suit was adjourned for a number of times for ex parte hearing and ultimately it was taken up for ex parte hearing on 19-4-71. The judgment was ultimately delivered on 30-4-1971 after two adjournments by which the suit was decreed ex Parte. On 9-8-1971, the defendant opposite party filed an application under Order 9 Rule 13 C. P. C. to set aside the ex parte decree with a petition under Section 5 of the Limitation Act for condonation of delay in presenting this application for setting aside the ex parte decree. Thereupon Misc. case No. 32 of 1971 was registered. Notice of this application for setting aside the ex parte decree was served on the plaintiff petitioners, who contested the Misc. Case. By order dated 29-1-4072 the Additional Munsif. Puri allowed this Misc. Case, set aside the ex parte decree by awarding cost of Rs. 23/- to the plaintiffs. The cost was deposited by the defendant within the time allowed by the Munsif.

(2.) THE only question urged in this revision Is that the application under Order 9 rule 13. C. P. C. is barred by limitation inasmuch as the delay between 5-8-1971 to 8-8-1971 (both days inclusive) has not been explained day by day, and that the opposite party has failed to show sufficient cause for setting aside the ex parte decree by failing to explain her absence on 19-4-71, the date of ex parte hearing.

(3.) THE learned counsel for the defendant opposite party raised a preliminary objection that the disposal of the application under order 9, rule 13 C. P. C. by setting aside the ex parte decree is not a 'case' decided within the meaning of section 115, C. P. C. and as such the present revision application is not maintainable.