SANT SECURITY SERVICES AND ANOTHER Vs. GURDEV SINGH

JUDGEMENT

(1.) Prayer is for setting aside the order dated 17.08.2017, Annexure P-3 passed by the learned Civil Judge, (Junior Division), Ludhiana i.e. EXE/32 of 2017, whereby the petitioner was proceeded ex parte and further order dated 08.01.2018 Annexure P-7 passed by the learned Civil Judge, (Junior Division), Ludhiana, whereby the application (Annexure P-5) under Order 9, Rule 13 of the CPC for setting aside ex parte order dated 17.08.2017 (Annexure P-3) had been dismissed.

(2.) Respondent/Plaintiff had filed a suit for recovery of Rs.53,163/- on account of amount payable by the petitioner to the respondent/plaintiff for services rendered. The said suit was decreed ex parte vide judgment and decree dated 14.10.2015 i.e. Annexure P-1. Application under Order 9, Rule 13 of the CPC was filed for setting aside the ex parte judgment and decree dated 14.10.2015. Although, learned counsel for the petitioner is unable to disclose the date on which the application (Annexure P-2) under Order 9, Rule 13 of the CPC was filed yet he states it was filed in the year 2017. In the meantime, execution petition was filed by the plaintiff/respondent. No application was filed by the petitioner for stay of the execution proceedings under Order 41, Rule 26 of the CPC. On 17.08.2017, the petitioner was proceeded ex parte in the execution proceedings and learnt about having been proceeded ex parte only two/three days prior to the filing of the application for setting aside of ex parte order dated 17.08.2017. The application was dismissed on the ground that the same had not been filed within a period of limitation of 30 days, besides the Court was not satisfied that the non-appearance on 17.08.2017 was unintentional.

(3.) Learned counsel for the petitioner contended that period of 30 days is stipulated only for setting aside ex parte decree dated 17.08.2017 under Article 123 of the Limitation Act, 1963 and that no limitation period is stipulated for moving an application under Order 9, Rule 7 of the CPC and further that there was no requirement that an application under Order 9, Rule 7 of the CPC had to be filed within a period of 30 days from the date of ex parte order. Reference in this context is made to the decision of this Court in 'Nirmala Devi v. Hari Krishan, 2015 5 RCR(Civ) 580. "Relevant extract of the aforesaid decision is reproduced as under :-