SHRI NIWAS Vs. GORDHAN

JUDGEMENT

(1.) BOTH these revision applications noted above arise out of the same order of the learned Senior Civil Judge, Churu, dated 3. 9. 55 and therefore they are disposed of together.

(2.) THE facts giving rise to these applications are that Gordhan plaintiff filed a suit for sale of mortgaged property valued at Rs. 4750/-in the court of the Civil Judge, Churu, on l9. 1. 52, against three persons namely, Shri Niwas and Banarsilal, sons of Ghasi Ram and Mst. Mani Devi widow of Ram Kumar. An ex parte preliminary decree was passed against the said defendants by the learned Civil Judge, Churu, on 19. 5. 52. THEreafter, a final decree was also passed on 17. 3. 53. THE plaintiff, decree holder took out execution of the decree. THE mortgaged property was put to auction and it was purchased by the decree holder himself. THEreafter, on 7. 7. 54 an application was presented by defendants Shri Niwas and Banarsilal for setting aside the ex parte decree. It was stated in the application that they were never served with summonses and the ex parte proceedings taken against them were therefore illegal. It was further stated that they had come to know of the decree on 17. 6. 54 and that the application was therefore within time computed from the date of their knowledge. It was prayed that the ex parte decree should be set aside. This application was contested by the plaintiff on the ground that there was a proper substituted service on the said two defendants, that they had come to know of the decree much earlier than 17. 6. 54, that during the course of the execution proceedings, the judgment debtors had started negotiations through Kedarnath Bajaj for paying up the decretal amount by instalments, that they had therefore knowledge of the decree and their application was time barred.