KHYALU RAM Vs. MANGLA NAND

JUDGEMENT

(1.) In this petition, order passed in an application under Section 5 of the Limitation Act for condonation of delay occurred in filing the application under Order 9 Rule 13 of the Code of Civil Procedure by learned Civil Judge (Junior Division), Anni, District Kullu has been challenged on the grounds inter-alia that learned trial Court has not appreciated the given facts and circumstances and also the evidence produced by the parties on both sides in its right perspective and as a result thereof, wrong findings came be recorded.

(2.) It is seen that suit filed by the respondent herein has been decreed ex-parte against the petitioner vide judgment and decree dated 30.07.2014. Instead of filing appeal against the ex-parte judgment and decree, the petitioner-defendant had opted for filing an application under Order 9 Rule 13 CPC and a separate application under Section 5 of the Limitation Act, which was registered as CMA No. 14-6/2015. It is the application under Section 5 of the Limitation Act which has been dismissed vide impugned order, as in the opinion of learned trial Judge, the petitioner-defendant has failed to show sufficient cause for condonation of delay as occurred in filing the application for setting aside the ex-parte decree. As a matter of fact, instead of invoking the revisional jurisdiction of this Court, the petitioner-defendant should have filed appeal against the order in the lower appellate Court. This petition, as such, is not maintainable. The law is no more res-integra, as a Co-ordinate Bench of this Court while placing reliance on the judgment of the Apex Court in Shyam Sundar Sarma V. Pannalal Jaiswal, 2005 1 SCC 436 has held in CMPMO No. 271/2015 decided on 8.1.2017 that an order of this nature can only be assailed in an appeal, which in the case in hand would have been preferred in the lower appellate Court.

(3.) Therefore, this petition though is dismissed, however, with liberty reserved to the petitioner-defendant to resort to remedy available to him against the impugned order in accordance with law and in the light of the observations made hereinabove. He shall also be at liberty to seek benefit of provisions contained under Section 14 of the Limitation Act in the matter of condonation of delay, if so advised because he had been bonafidely pursuing the remedy by filing the present petition in this Court.