Case :- MATTERS UNDER ARTICLE 227 No. - 1849 of 2018 Petitioner :- Momin And 9 Ors.
Respondent :- Akhtar And 11 Ors.
Counsel for Petitioner :- Jagdish Prasad Mishra Counsel for Respondent :- Nafees Ahmad
Hon'ble Manoj Kumar Gupta,J.
By means of the instant petition filed under Article 227 of the Constitution, the petitioners have challenged the order dated 10.10.2012 whereby, the trial Court has allowed the application bearing paper No. 6Ga on payment of a cost of Rs.500/- and has set-aside the ex-parte decree dated 13.3.2002 in Original Suit No. 156/2001. The application was filed by the defendant respondents. The trial Court has recorded a specific finding that the defendants were not served with the summons and they gained knowledge of the ex-parte judgment and decree dated 13.3.2002 for the first time on 27.5.2002. Accordingly, the application filed by the defendant respondents on 30.5.2002 seeking setting aside of the ex-parte decree, was well within limitation. The revision filed by the petitioners has also been dismissed by order dated 26.2.2018 and the said order is also under challenge.
The sole submission of learned counsel for the petitioners is that initially the Munsarim reported that the application filed under Order 9, Rule 13 CPC was delayed and accordingly an application under Section 5 of the Limitation Act was duly filed. However, the said application was got dismissed as withdrawn on 25.8.2010. Thus, according to him, in the absence of Section 5 application for condoning the delay, the trial Court erred in allowing the application under Order 9, Rule 13 CPC.
The finding recorded by the trial Court that the defendant respondents came to know of the ex-parte judgment and decree for the first time on 27.5.2002, is not under challenge. Concededly, the application under Order 9, Rule 13 CPC was filed on 30.5.2002 well within the thirty days. Therefore, there was in fact, no delay in filing the application seeking setting aside of the ex-parte decree.
the order of the trial Court allowing application under Order 9, Rule 13 CPC. The petition lacks merit and is dismissed.
(Manoj Kumar Gupta, J.) Order Date :- 27.3.2018 AM/-