BAL KISHAN SHARMA Vs. RADHEY SHYAM GODHAWAT

JUDGEMENT

(1.) BY way of the instant appeal preferred under Order 43 Rule 1 (d) CPC, the appellants-defendants have beseeched to set-aside the order dated 3rd September, 2011, whereby the learned Additional District Judge (Fast Track) No. 7, Jaipur Metropolitan dismissed the Civil Misc. Application No. 56/2008 filed under Order 9 Rule 13 CPC.

(2.) ADUMBRATED in brief, the facts of the case are that the respondent-plaintiff filed a suit against the appellants-defendants in the Court of Additional District Judge (Fast Track) No. 7, Jaipur city, Jaipur (here-in-after referred to as the 'trial court') on 17th January, 1995 seeking specific performance of an agreement alleged to have been executed by the appellants in favour of the respondent on 29th November, 2006 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 the order on 13th August, 1998 to proceed ex-parte against the appellants. After completion of trial, the trial court finally passed an ex-parte decree in favour of the plaintiff respondent and against the appellants-defendants vide judgment and decree dated 18th August, 2007. When the appellants came to know about the said ex-parte decree on 12th October, 2008, they immediately filed an application under Order IX Rule 13 of CPC on 20th October, 2008 for setting aside the said ex-parte decree. The said application of the appellants came to be dismissed by the trial court vide order dated 3rd September, 2011. The appellants thereafter filed a regular appeal under Section 96 (2) readwith Order 41 Rule 1 of CPC challenging the judgment and decree dated 18th August, 2007 passed by the trial court in Civil Suit No. 4/2007. Since there was a delay of about 1421 days in filing the appeal and the appellants utterly failed to make out any sufficient cause for the condonation of delay as contemplated under Section 5 of the Limitation Act, the application filed under Section 5 of the Limitation Act with regard to condonation of delay was dismissed vide order dated 23rd December, 2011 by the Coordinate Bench. In view of the dismissal of the Misc. Application No. 288/2011 filed under Section 5 of Limitation Act, the Coordinate Bench also dismissed the Civil First Appeal No. 691/2011. After dismissal of the first appeal preferred against the ex-parte decree, the appellants now have preferred an appeal under Order 43 Rule 1 (d) CPC against the order dated 3rd September, 2011, whereby the trial court dismissed the application of Order IX Rule 13 CPC.

(3.) LEARNED counsel for the respondent further canvassed that the appellants-defendants first filed an application under Order IX Rule 13 of CPC on 20th October, 2008 for setting aside the said ex-parte decree and when that application was dismissed by the trial court on 3rd September, 2011, the appellants-defendants instead of preferring an appeal against the order dated 3rd September, 2011, preferred first appeal under Section 96(2) of CPC against the ex-parte judgment and decree passed by the trial court on 18th August, 2007. Since the appellants-defendants filed the appeal after inordinate delay of 1421 days and they utterly failed to make out a sufficient cause for the condonation of delay, the first appellate court dismissed the application filed under Section 5 of Limitation Act and also dismissed the appeal accordingly vide order dated 23rd December, 2011. Since the first appeal preferred against the ex-parte judgment and decree has already been disposed of on any ground other than the ground of withdrawl of appeal, the instant appeal against the order whereby the application of setting aside the ex-parte decree filed under Order IX Rule 13 CPC was dismissed, is not maintainable.