GHULAM HASSAN BANGI Vs. HAMIDA

JUDGEMENT

(1.) A decree for possession stand passed in favour of the present petitioner. The said decree has been passed ex-parte even though the defendants therein had filed written statement but did not choose to appear thereafter. An execution application was filed by the present petitioner. The non-applicants/ defendants filed an application under Order 9 Rule 13 CPC before the trial court seeking setting aside of the decree, after a lapse of one year from the date of passing of the decree. The said application was not accompanied by the petition under Section 5 of the Limitation Act for seeking condonation of delay in filing the said application. The trial court dismissed the application on the ground that the same was time barred and there was no application filed for seeking condonation of delay in this behalf.

(2.) Another application for setting aside exparte decree accompanied by an application under Section 5 of the Limitation Act was filed before the trial court. The said application was dismissed as it was hit by the principle of res judicata. The finding

(3.) An appeal was preferred against this order before the Principal District Judge, Srinagar who set aside the order of the trial court. The Appellate Court held that the principles of res judicata were not applicable in the case, reasoning provided was that the application under Order 9 Rule 13 was rejected being time barred, did not deal with the grounds taken by the applicant therein for setting aside the exparte decree. The issue regarding reasons for setting aside exparte decree has not been determined by the Court, as such, subsequent application filed for setting aside exparte decree accompanied by the application under Section 5 of the Limitation Act was competent. It is in these circumstances present revision petition has been filed.