RAM NARAIN SINGH Vs. GURINDER KAUR

JUDGEMENT

(1.) THIS is a civil revision and has been directed against the order dated 17. 12. 1981 passed by the Court of Additional District Judge, Kurukshetra, who affirmed the order dated 16. 1. 1980 passed by the Court of Sub Judge Ist Class, Kurukshetra who dismissed the application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the exparte decree passed in civil suit No. 298 of 1972 on 20. 10. 1972.

(2.) THE facts of the case can be described in the following manner: Earlier Smt. Bhagwan Kaur filed a suit for possession of the agricultural land situated in village Hairpur, Tehsil Thanesar, District Karnal against her three sons on 10. 5. 1972 and she obtained an ex parte decree against defendant No. 3 Ram Narain and others. For setting aside the ex parte judgment and decree dated 20. 10. 1972 applicant Ram Narain who was defendant No. 3 in the main suit first filed an application under Order 9 Rule 13 of the Code of Civil Procedure on 7. 6. 1973 in the Court of Sub Judge 1st Class, Karnal and he averred that he was not duly served in the main suit and as such the ex parte order passed during the pendency of the suit and the ex parte decree are illegal. He was not duly served for 17. 6. 1972 or for 17. 8. 1972. Accordingly, he did not know about the institution of the suit filed against him and others and he came to know about the institution of the execution of the decree on 4. 5. 1973 when the Patwari Halqa went to the land in suit to deliver the possession to Smt. Bhagwan Kaur plaintiff of the civil suit. After obtaining the knowledge of the ex parte decree, he went to the copying Agency, Kurukshetra and obtained a copy of the decree sheet on 26. 5. 1973. It has been further alleged by the petitioner Ram Narain Singh that after inspecting the file he came to know that fraud had been played on him as the attesting witness on the summons was highly interested in the plaintiff Smt. Bhagwan Kaur. Wrong report was obtained by the decree holder in connivance with the attesting witness and process server. There was no order of affixation for 17. 6. 1972 nor any affidavit had been attached along with the summons of the process server regarding the affixation proceedings. It may be mentioned here that in fact, Ram Narain Singh filed two applications under Order 9 Rule 13 C. P. C. First on 7. 6. 1973 which was dismissed by the Sub Judge vide his order dated 24. 9. 1973 with the following orders: "this application has been moved by Ram Narain wherein the heading of the application, the case has been shown as Bhagwan Kaur v. Kuldip Singh, Harchand Singh and said Ram Narain. The applicant has himself made himself as respondent in this application, so, the application does not lie in the present form and the same is rejected". Still another application after due correction was moved by the petitioner on the same date i. e. 24. 9. 1973 for setting aside the ex parte decree. Same grounds were taken in the application dated 24. 9. 1973 which were earlier taken in the application dated 7. 6. 1973. It was repeated in the application dated 24. 9. 1973 that the applicant came to know about the institution and execution of the suit on 4. 5. 1973 when Patwari Halqa went to the land for the delivery of possession to Smt. Bhagwan Kaur.

(3.) FROM the above pleadings of the parties, learned trial Court framed the following issues for disposal of the application :1)Whether there are sufficient grounds to set aside the ex parte decree? OPa 2) Whether the application is within time? OPa 3) Relief.