SIDHESWAR SAHU Vs. ARAKHITA JENA

JUDGEMENT

(1.) In this application correctness of orders passed by learned Civil Judge, Senior Division, First Court, Cuttack and learned Second Addl. District Judge, Cuttack, while dealing with acceptability of petition filed by petitioner under Order 9, Rule 13 of the Code of Civil Procedure, 1908 (in short, the 'Code') for setting aside ex parte decree passed against him in T.S. No. 677 of 1986, is questioned.

(2.) Background facts undisputed essentially, are as follows:Opposite Parties herein brought T.S. No. 677 of 1986 against one Moti Bewa for specific performance of contract. Consequent upon the death of Moti, petitioner was substituted as defendant in her place as she was stated to be adopted mother of the petitioner. He traversed pleadings of the plaintiffs by filing written statement; but did not take any steps after 12-3-1991. He was set ex parte, suit was heard on 5-4-1991 and 4-4-1991 in his absence, and judgment decreeing the suit ex parte was pronounced on 1-5-1991. After sealing and signing of the decree, plaintiffs deposited the balance consideration amount and took steps to get the requires sale deed executed through Court. Petitioner refused to receive the notice relating to draft sale deed, and learned Civil Judge in his order dated 11-12-1993 held service of notice on him to be sufficient, and fixed 11-5-1994 as the date for filing sale deed on stamp paper. On the said date, petitioner appeared and filed a petition for stay of further proceeding, and on 12-5-1994 he filed an application under Order 9, Rule 13 of the Code along with a petition under Section 5 of the Indian Limitation Act, 1953 (in short, 'Limitation Act') for condoning delay. The application for setting aside the ex parte decree was registered as Misc. Case No. 272 of 1994. It was stated that on account of laches of his counsel there was non-appearance. Learned Civil Judge on analysis of facts situation and taking note of petitioner's participation in several proceedings on different dates, came to hold that plea of petitioner, throwing blames on his counsel was not acceptable. The application was accordingly dismissed. Appeal before learned Second Addl. District Judge not with the same fate. Both learned Civil Judge and learned Second Addl. District Judge held that factual position was distorted and the plea taken by petitioner regarding absence was not tenable.

(3.) In support of the revision application, Mr. P.K. Routrary, learned counsel for petitioner submitted that decree obtained was the outcome of fraud practised on Court, and there was suppression of fact that a proceeding under Urban Land (Ceiling and Regulation) Act, 1975 (is short, 'Ceiling Act') was pending and in view of the bar prescribed under Section 42 of the said Act, there could not have been any adjudication, much less in favour of the opposite parties. It is further submitted that a liberal attitude is warranted while dealing with an applications for condonation of delay. A party does not stand to gain by abating from a proceeding and therefore, normal approach of the Court should be to accept prayer for restoration and/or to condone delay rather than reject it. Mr. S. K. Panda, learned counsel for opposite parties on the other hand submitted that petitioner has not come to this Court with clean hands. In large number of cases before various forums he was actively participating. In fact he was participating in several cases which were before this Court. It is further submitted that an application under Section 47 of the Code has been filed questioning executability of decree on the ground that it is an outcome of fraud. Therefore, the application under consideration deserves dismissal.