TASHI Vs. ROOP BATI AND ANOTHER

JUDGEMENT

(1.) This revision petition is directed against the order dated 22.4.2010, passed by the learned Additional District Judge, Fast Track Court, Kullu in CMP No. 35/2010.

(2.) Material facts necessary for the adjudication of this petition are that the respondent-plaintiff (hereinafter referred to as the "plaintiff " for convenience sake) instituted a suit for specific performance of agreement to sell dated 8.10.2003. Petitioner-defendant (hereinafter referred to as ‘defendant’ for convenience sake) was proceeded ex parte on 20.2.2006. An ex parte decree was passed by the trial court on 26.12.2006. Thereafter, defendant, namely, Tashi moved an application under Order 9, Rule 13 of the Code of Civil Procedure to set aside the ex parte decree dated 26.12.2006 passed in civil suit No.133/2005 along with application, under section 5 read with section 14 of the Limitation Act. Plaintiff filed reply to the application under section 5 read with section 14 of the Limitation Act preferred by defendant Tashi. According to the plaintiff, defendant-Tashi was aware of the ex parte decree passed against him. Defendant appeared in the execution petition bearing No. 15-X/2007 before the executing court on 12.9.2007. Application for setting aside the ex parte decree was preferred by the defendant Tashi on 22.4.2008. Learned Civil Judge (Senior Division) dismissed C.M.A. No. 75-VI of 2008 on 31.8.2009. Civil Judge (Senior Division) has returned a finding that defendant knew about the judgment and decree passed by the trial court in Civil Suit No. 133/2005. In fact, defendant Tashi had appeared in the court on 12.9.2007 in the execution petition pursuant to the summons he had received on 31.8.2007. He had been continuously appearing through his counsel Sh. G.S. Negi since 12.9.2007. There was delay of 8 months in filing the application under Order 9, Rule 13 of the Code of Civil Procedure for setting aside ex parte decree dated 26.12.2006 rendered in Civil Suit No. 133/2005.

(3.) Mr. T.S. Chauhan has strenuously argued that his client was preoccupied due to illness of his wife. She was sick between May, 2006 to July, 2007. She expired on 19.8.2007.