BANSIDHAR LENKA Vs. KUMAR BARIK

JUDGEMENT

(1.) This revision is directed against the order passed by the learned Subordinate Judge Bhubaneswar setting aside the ex parte decree passed in Original Suit No. 22 of 1979(I) for specific performance of contract. The plaintiff is the petitioner.

(2.) According to the defendant's case he was never a resident of village Palasuni, but has all along been a resident of Tulsipur, Cuttack. He did not enter into an agreement with the plaintiff for sale of land for a consideration of Rs.10,000/-. Nevertheless, on the basis of a forged document the plaintiff instituted Original Suit No. 32 of 1979(I) in the trial Court for enforcement of the contract and praying for a decree for specific performance thereof. In the said suit service of summons was fraudulently suppressed. By making manipulations it was made to appear that he entered appearance in the said suit through Advocate, Shri B. C. Rath who, however, had instituted the suit on behalf of the plaintiff and could not have entered appearance for the defendant By perpetration of such fraud, the plaintiff managed to obtain an ex parte decree on 10-1-80. The defendant obtained certified copies of the decree and other documents on 17-4-82 and 3-5-82 from which he became aware of the fraudulent ex parte decree passed against him. So by a petition under O.9, R.13, C.P.C. presented on 10-5-82 along with a petition for condonation of delay under S.5 of the Limitation Act, he applied for setting aside the ex parte decree.

(3.) The plaintiff in his counter denied the allegations and averred that the defendant was a resident of Palasuni and had in fact executed a deed of agreement for sale of land in his favour. He did not execute the sale deed and so the plaintiff brought the suit in which summons was duly served on the petitioner. He entered appearance in the suit through Advocate. Shri M. M. Patnaik and Shri P. K. Das and applied for adjournment to file his written statement. Ultimately he did not file the same, was set ex parte and an ex parte decree was passed. It was further averred that the petition under O.9, R.13, C.P.C. was barred by limitation.