BAL KISHAN SHARMA Vs. RADHEY SHYAM GODHAWAT

JUDGEMENT

(1.) THE precise question that falls for consideration before this court is as to whether delay occurred in filing the present appeal filed under section 96 of CPC, challenging the exparte decree passed by the trial court should be condoned on the ground that the applicants-appellants (original-defendants) had filed an application under order 9, Rule 13 of CPC before the trial court for setting aside the same exparte decree, which application ultimately came to be dismissed by the trial court ?

(2.) A few facts, giving rise to the present application filed under section 5 of the Limitation Act seeking condonation of delay occurred in filing the appeal, are that the present respondent (original plaintiff) had filed a suit being No. 4/2007 (13/95) (42/1995) against the present applicants-appellants (original defendants) in the court of Addl. District Judge (Fast Track) No.7, Jaipur City, Jaipur (hereinafter referred to as the 'trial court'), on 17.1.95, seeking specific performance of an agreement alleged to have been executed by the appellants in favour of the respondent on 29.11.1986 with regard to the sale of the suit property described in para No. 1 of the plaint. In the said suit, the summons were sought to be served on the appellants-defendants, however, the same were allegedly refused by the appellants and therefore the trial court passed an order on 13.8.1998 to proceed exparte against the appellants. The trial court ultimately considering the evidence on record adduced by the respondent-plaintiff decreed the said suit, vide the judgment and decree dated 18.8.2007. According to the appellants, they came to know about the said exparte decree on 12.10.2008 and therefore they filed an application under Order 9,Rule 13 of CPC on 20.10.2008 for setting aside the said exparte decree. The said application of the appellants came to be dismissed by the trial court vide order dated 3.9.2011. The appellants thereafter have filed the present appeal under section 96 read with Order 41, Rule 1 of CPC challenging the judgment and decree dated 18.8.2007 passed by the trial court in the Civil Suit No. 4/2007. Since there was a delay of about 1421 days in filing the appeal, the appellants have filed the present application under section 5 of the Limitation Act seeking condonation of the said delay.

(3.) THE Apex Court in the case of P.Kiran Kumar vs A.S. Khadar and others (AIR 2002 SC 2286), followed the above referred ratio laid down in the case of Rani Chaudhary. Again the Apex Court while considering the issue of remedies available to a defendant when an exparte decree is passed against him, observed as under in the case of Bhanu Kumar (supra);