RAMSWAROOP Vs. KANTA DEVI

JUDGEMENT

(1.) The petitioner is aggrieved by the order dated 3.3.2014 passed by the District Judge, Sawai Madhopur, whereby the learned Judge has dismissed the application filed by the petitioner under Order 22 Rule 4 CPD along with application under Section 5 of the Limitation Act for taking on record the legal representative of the respondent-plaintiff, Smt. Kanta Devi.

(2.) The brief facts of the case are that the respondent-plaintiff, Smt. Kanta Devi had filed a suit for recovery of Rs. 1,15,600/- against the petitioner before the learned Judge. Even after issuance of notice, no one had appeared on behalf of the petitioner. Therefore, on 10.5.2010 ex-parte proceedings were initiated against the petitioner. Eventually, on 13.7.2010 a judgment and decree were passed against the petitioner. Subsequently, the respondent-plaintiff filed an execution application before the executing court for recovery of the said amount. During the execution proceedings, the petitioner claimed that he came to know about the existence of civil suit, and about the existence of judgment. Therefore, on 11.7.2011, he filed an application under Order 9 Rule 13 CPC for setting aside the ex-parte proceedings. During the pendency of the said application, Smt. Kanta Devi expired on 12.2.2012. The petitioner moved an application under Order 22 Rule 4 CPC on 11.2.2013 along with an application under Section 5 of the Limitation Act. However, by order dated 3.3.2014, his application under Order 22 Rule 4 CPC has been rejected. Hence, the present petition before this Court.

(3.) Mr. Yogesh Singhal, the learned counsel for the petitioner, has contended that since there was a delay in filing of application under Order 22 Rule 4 CPC, the petitioner had filed an application under Section 5 of the Limitation Act. Since, he had shown sufficient cause for the delay, the application under Section 5 of the Limitation Act should have been allowed, and the application under Order 22 Rule 4 CPC should have been accepted. Secondly, even if the learned Judge was of the opinion that an application under Order 22 Rule 9 CPC should have been filed for setting aside the abatement, a reasonable time should have been given to the petitioner to move the said application. After all, according to the learned counsel in catena of cases, both the Hon'ble Supreme Court and this Court have held that the Court should be liberal while allowing an application under Order 22 Rule 4 CPC. However, the learned Judge has ignored the principle laid down by the Hon'ble Supreme Court and by this Court. Hence, the impugned order deserves to be set aside.