DHANNA LAL Vs. SMT. RAM PYARI

JUDGEMENT

(1.) The present appeal has been filed by the appellants-applicants-defendants under Order 43, Rule 1 CPC challenging the order dated 21.02.2015 passed by learned Additional District Judge No.2, Ajmer (hereinafter referred as "trial court") in Civil Misc. Case No.105/2014 filed in the Civil Suit No.49/2012 (95/2012), whereby the trial court has rejected the application of the applicants-appellants, filed under Order 9, Rule 13 of CPC on the ground of being barred by law of Limitation.

(2.) In the instant case, it appears that the appellants had earlier filed S.B. Civil First Appeal being No.118/2013, challenging the judgment and decree dated 18.07.2012 passed by learned trial court ex-parte, whereby the sale deed dated 08.09.2011 executed in favour of the appellants defendants was set aside. The said first appeal was permitted to be withdrawn with liberty to the appellants-applicants to file an application under Order 9, Rule 13 of CPC, vide order dated 10.10.2014. The appellants-applicants thereafter filed application under Order 9, Rule 13 CPC for setting aside the ex-parte decree in the suit, which has been dismissed by the trial court vide impugned order dated 21.02.2015 on the ground that being barred by limitation of law.

(3.) It is sought to be submitted by the learned counsel for the appellants-applicants that the impugned order dated 21.02.2015 passed by the trial court is erroneous, inasmuch as the trial court has wrongly placed reliance on the decision of the Supreme Court which had no application to the facts of the present case. He also submitted that the trial court has failed to appreciate that the application was filed by the appellants as per the liberty granted by this court in the first appeal, and therefore the time consumed in the first appeal was required to be deducted from the total number of days of delay. According to him, the appellants who were the defendants in the suit were not duly served in the suit and hence the delay had occurred in challenging the ex parte decree passed in the suit.