DR. GOLAK BEHARI MOHANTY Vs. SAKHI DEI

JUDGEMENT

(1.) DEFENDANT No. 9 -ka is the Petitioner. His application under Order 9, Rule 13 of the Code of Civil Procedure to set aside the ex parte final decree passed on 29 -4 -1980 having been rejected by the Subordinate Judge, Second Court, Cuttack, in Misc. Case No. 36 of 1982 and on appeal in Miscellaneous Appeal No. 20 of 1984, the said order having been affirmed by the First Additional District Judge, Cut tack, he has preferred this revision.

(2.) ACCORDING to the Petitioner, the final decree proceeding in Title Suit No. 317 of 1959 was pending in the Court of the First Additional Subordinate Judge, Cuttack and a writ had been issued to the Commissioner for effecting partition. The writ was issued on 11.10.1979. The Commissioner kept the matter pending for quite some time and visited the spot and ultimately submitted his report on 7 -4 -1980 which was accepted by the Court 011 29 -4 -80. The Petitioner could not know the date of submission of the report by the Commissioner nor about its acceptance by the Court and according to him no opportunity was given to him to file any objection to the said report. It is only on 4 -3 -1982, the Petitioner's advocate could know about the report of the Commissioner being accepted by the Court when the said Advocate could hear the clerk of the Plaintiff's advocate making enquiries as to the preparation of the final decree for which he had filed the requisite stamp papers. Thereafter he inspected the records of the case and then filed the application under Order 9, Rule 13 of the Code of Civil Procedure for setting aside the said order passed by the Subordinate Judge. The Petitioner also filed an application under Section 5 of the Limitation Act for condoning the delay in preferring the said application. The main ground urged in the application under Order 9, Rule 13 was to the effect that in 1980, there was a bifurcation of the jurisdiction of the Court of the Subordinate Judge and Petitioner's counsel could not know to which Court the pending proceeding had been transferred and further the matter before the Commissioner remained with the said Commissioner for quite some time and Petitioner's counsel genuinely expected a notice from the Court after the Commissioner submits his report.

(3.) IN the proceeding under Order 9, Rule 13, the Petitioner was examined and he supported the stand taken by him in the application. The opposite party though cross -examined the Petitioner but did not adduce any evidence. The learned Subordinate Judge on discussion of the evidence came to hold that there was no justifiable reason to condone the delay in preferring the application and accordingly dismissed the same.