SHIV PRAKASH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The present appeal has been filed under Order XLIII Rule 1 of the Civil Procedure Code (for short as 'CPC') challenging the order dated 21.7.2011 passed by Additional District & Sessions Judge, Laxmangarh (Alwar) (hereinafter referred to as the 'court below') in case no. 90/2011, whereby the court below has dismissed the application of the appellant-original defendant under Order IX Rule 13 CPC read with Sec.5 of the Limitation Act.

(2.) The short facts giving rise to the present appeal are that the respondent-original plaintiff had filed the suit being No.34/2008 for specific performance of the alleged agreement dated 30.10.2002 against late Sh.Manphool Meena, father of the appellant and two others, which was decreed exparte against the defendants of the said suit as per the judgment and decree dated 21.7.2009. According to the appellant, his father Manphool Meena expired on 9.5.2010 and he came to know about the exparte decree for the first time on 16.7.2010 when one person named Mukesh Jain told him about the said decree. The appellant thereafter filed the application under Order IX Rule 13 CPC read with Sec.5 of the Limitation Act on 12.8.2010 for setting aside the said exparte decree. The said application of the appellant was rejected by the court below vide impugned order.

(3.) It has been sought to be submitted by the learned counsel for the appellant that the father of the appellant was never served with the summons in the suit, and after the death of his father, the appellant came to know about the exparte decree from third person. According to him, the appellant was also not aware about the execution proceedings filed by the respondent and hence there was no delay in filing the application under Order IX Rule 13 CPC.