LAKPA SHERPA Vs. TEMPA SHERPA

JUDGEMENT

(1.) This is a Civil Revision Application filed under S. 115 of the Civil Procedure Code. It is directed against an order passed on 11-6-96 by the learned District Judge, East and North, Sikkim in Civil Misc. Appeal No. 2 of 1995 allowing an application filed under S. 5 of the Limitation Act for condonation of delay in filing of the Appeal.

(2.) To appreciate the fact of the case, events in chronological order are to be looked into. A suit was filed and registered as Civil Suit No. 41 of 1993 by the Appellant in the Court of learned Civil Judge, East Sikkim. This suit was registered on 19-10-93 after disposal of Civil Misc. Case No. 2 of 1993 arising out of an application to proceed with the suit as an indigent person. Summons of the suit was issued fixing 27-11-93 as the date for service return and appearance of the defendant. On 27-11-93 it was noticed that the summons was not served till that date. Hence, the same was re-issued fixing 21-1-94 as the datefor appearance of the defendant. On 21-1-94 the defendant sought for an adjournment and further sought for a direction on the plaintiff to supply copy of the plaint which was alleged to have not been annexed to the summon. 21-2-94 was the date fixed for supply of the plaint. Since the defendant was absent on that date the Learned Civil Judge fixed a longer date for ex parte hearing of the suit. It was on 30-3-94. Ex parte evidence was recorded on that date and 16-4-94 was fixed for order. Ex parte judgment was passed on that date.

(3.) The plaintiff decree-holder put the ex parte decree into execution on 20-7-94 and it was registered as Civil Execution Case No. 8 of 1994. Attempts were made for service of notice on the judgment-debtor but on a few subsequent dates the service could not be effected. Ultimately, after several attempts the notice sent under registered post came back on 15-6-95 with the postal endorsement that the judgment-debtor refused to accept the same. On 17-7-95 the judgment-debtor appeared before the executing court praying for setting aside the decree on the ground that he did not know anything about the decree and he could acquire knowledge of such a decree only on that date (17-7-95) when the court-people went to his residence to take measurement, etc. The prayer made by the judgment-debtor before the executing court and in execution case for setting aside the impugned decree was rejected and the learned Executing Court asked the judgment-debtor to make payment in instalments of Rs. 10,000/- each.