BRIJ LAL Vs. NARBADA

JUDGEMENT

(1.) Heard. Order, dated 17.11.2016, passed in an application under Order 9 Rule 13 read with Section 151 of the Civil Procedure Code, is under challenge before this Court in this petition. The ex-parte decree passed on 30.6.2011 in H.M.P. No. 69 of 2009 on condonation of delay has been set aside vide the order under challenge.

(2.) The complaint is that the petitioner-husband was never served with notice of the application under Order 9 Rule 13 read with Section 151 of the Civil Procedure Code nor afforded an opportunity of being heard and ex-parte decree has been quashed and set aside. The order, under challenge, therefore, is stated to be illegal and violative of principles of natural justice.

(3.) Having gone through the record and also taking into consideration the submissions made on behalf of the petitioner-husband, it is crystal clear that two applications; one under Order 9 Rule 13 read with Section 151 of the Civil Procedure Code and the another under Section 5 of the Limitation Act came to be filed with the prayer to set aside ex-parte decree passed in H.M.P. No. 69 of 2009 by the respondent-wife. The applications were listed in the Court of learned District Judge, Mandi with the office report, dated 5.6.2013. Notice of these applications were issued to the petitioner-husband for 18.7.2013. The notice, which is available on record, finds mention of both the applications. No doubt, the petitioner-husband could not be served with the notice for 18.7.2013 and even for the date next thereto viz 12.3.2014, however, he was duly served with the notice for 21.4.2014. The copy of this notice available on record also finds mention of the application filed under Order 9 Rule 13 read with Section 151 of the Civil Procedure code; meaning thereby that the petitioner-husband had due knowledge of filing of two applications, i.e. one under Order 9 Rule 13 read with Section 151 of the Civil Procedure Code and another under Section 5 of the Limitation Act. This fact is even substantiated from the perusal of the reply filed in which both the applications, find mention.