RAMPAL DAS CHELA Vs. BHAGWAN & ORS.

JUDGEMENT

(1.) THE present appeal has been filed by the appellant -defendant No. 1 under Order XLIII Rule 1 of CPC, challenging the order dated 20.09.2008 passed by the Additional District Judge, No. 7, Jaipur City, Jaipur (hereinafter referred to as "the trial court") in Civil Misc. Case No. 77/2007, whereby the trial court has dismissed the application of the appellant filed under Order IX Rule 13 of CPC alongwith the application under Section 5 of the Limitation Act, for setting aside the ex -parte decree dated 07.09.1995 passed by the court in the Civil Suit being No. 84/92. The short facts giving rise to the present appeal are that the respondents -plaintiffs had filed the suit seeking specific performance of the agreement dated 28.05.1974 in respect of the lands in question. The said suit was decreed by the trial court on 07.09.1995 as nobody appeared on behalf of the appellant -defendant. According to the appellant, he came to know about the said decree only when the notice for execution of the said decree was served upon him, and therefore, he filed the application under Order IX Rule 13 for setting aside of the said ex -parte decree alongwith the application for condonation of delay under Section 5 of the Limitation Act. The said applications have been dismissed by the trial court vide the impugned order.

(2.) IT has been sought to be submitted by the learned counsel Mr. L.L. Gupta for the appellant that the concerned counsel appearing for the appellant in the suit did not remain present, which resulted into ex -parte decree against the appellant. He also submitted that the ex -parte decree deserves to be set -aside in the interest of Justice. At the outset, it is required to be noted that the order under challenge is dated 20.09.2008 and though the appeal was filed in 2009, there was no attempt made on behalf of the appellant to pursue the present appeal for about 5 years. So far as the merits of the appeal are concerned, it transpires that the decree dated 07.09.1995 passed by the trial court, was sought to be set -aside by way of application under Order IX Rule 13 in the year 2007 i.e. after about 12 years of passing of the said decree. There is also nothing on record to show that the appellant had taken any action against the concerned counsel who had not appeared before the court. Under the circumstances, the trial court has rightly not entertained the application of the appellant which was filed after gross delay. The Court does not find any illegality or infirmity in the impugned order passed by the trial court, and therefore, the appeal deserves to be dismissed, and is accordingly dismissed in limine.