PALWINDER KAUR Vs. GAJJAN SINGH

JUDGEMENT

(1.) AN ex parte decree that the Plaintiffs (now Petitioners) are co -sharers in the land in dispute, was passed by Additional Civil Judge (Sr. Division), Patti. Aggrieved by the judgment and decree, the Defendants Respondents filed an application under Order 9 Rule 13 read with Section 151 Code of Civil Procedure for setting aside the ex parte decree. During the pendency of the said application, the trial Court stayed the implementation of the decree vide order dated 7.2.2001 which is under challenge. In addition to this, the trial Court has framed issues arising out of the pleadings of the parties in the application under Order 9 Rule 13 read with Section 151 Code of Civil Procedure and now the case is fixed for evidence of the Defendants. It is this order which has been impugned in this revision petition.

(2.) THE civil revision has not been filed within the prescribed period of limitation. This necessitated the filing of application under Section 5 of the Limitation Act (in short the Act). It is averred therein that since they were in possession of the land being legal hears of the deceased, they were not advised to file the revision. On this assumption, they had not challenged the stay order.

(3.) I hardly find any ground to attribute mala fides on the part of the Petitioners. They are the persons who are directly affected by the impugned order staying the execution of the decree already passed in their favour. If at an early stage, due to ill advice of someone they had not filed the revision, their revision cannot be thrown on the ground of delay. In construing Section 5 of the Act, the Court has to keep in mind that discretion in the section has to be exercised to advance substantial justice.