NEELAM @ NEELAM SHARDA Vs. PRIMLA GAUTAM

JUDGEMENT

(1.) This appeal is directed against order dated 6.3.2009 whereby an application filed by defendant/appellant under Order 41 Rule 21 of the Code of Civil Procedure, 1908 (for short 'CPC'), for rehearing the appeal by setting aside the judgment dated 6.6.2008, has been dismissed.

(2.) In brief, the facts of the case are that plaintiff filed a suit for declaration with consequential relief of permanent and mandatory injunction, which was dismissed by the learned Trial Court vide its judgment and decree dated 9.5.2007. The plaintiff preferred first appeal under Section 96 of the CPC in which the appellant was not personally served. She was thereafter served by way of substituted service by publication of the notice in the daily newspaper 'Chardikala' and was summoned for 16.4.2008. The learned First Appellate Court recorded an interlocutory order on 16.4.2008 that the publication issued against the respondent has been received back duly published but since no one has put in appearance on her behalf till 4.00 PM, therefore, she was proceeded against ex parte. Thereafter, the appeal was allowed ex parte vide judgment and decree dated 6.6.2008.

(3.) According to the case of the appellant, certified copy was applied on 7.6.2008, which was received on 13.6.2008 and the application under Order 41 Rule 21 CPC was filed on 14.6.2008. It is submitted that according to Article 123 of the Limitation Act, 1963 (for short 'the Act'), application for setting aside the ex parte order for the purpose of rehearing of the appeal, which has been decided ex parte, the limitation is 30 days and for that purpose as per the explanation appended thereon, the substituted service published under Order 5 Rule 20 CPC shall not be deemed to be due service. It is submitted that the learned Court below while rejecting the application has taken the limitation from the date when the appellant was proceeded ex parte i.e. from 16.4.2008 whereas the limitation should have been taken from the date when the ex parte decree was passed.