Court No. - 7
Case :- MATTERS UNDER ARTICLE 227 No. - 3919 of 2021 Petitioner :- Ramji Respondent :- Rudra Nath @ Rudra Prasad And 5 Others Counsel for Petitioner :- Shashi Prakash Misra
Hon'ble Ajit Kumar,J.
Heard learned counsel for the petitioner.
The petitioner has challenged the order dated 21st December, 2020 passed by 1st Additional District Judge, Court No. 1 Basti in Civil Appeal No. 81 of 2014 arising out of the order dated 27.09.2014 passed by trial court rejecting the application filed under Section 5 of the Indian Limitation Act, 1963 seeking condonation of delay in filing application for recall of the ex parte decree under Order IX Rule 13 of Code of Civil Procedure Code, 1908.
The argument advanced by learned counsel for the petitioner is that once the trial court has rejected the application under Section 5 of the Indian Limitation Act, 1963 and, consequently also the application under Order IX Rule 13 vide composite order dated 27.09.2014, the court below was not justified in setting asiding the order dated 27.09.2014 only in respect of Section 5 of Indian Limitation Act and remanding the matter without setting asiding the order in respect of the order IX Rule 13 also.
In the considered opinion of the Court there is fallacy in the argument of the petitioner for the simple reason that if the court had set aside the order dated 27.09.2014 in respect of application filed under Order IX Rule 13 of the Code of Civil Procedure, 1908, there would not have been any occasion to remand the matter to the trial court as application would have stood allowed. However, I find that the court below has simply remanded the matter for reconsideration of the application under Order IX Rule 13 of Code of Civil Procedure by condoning the delay in filing the same.
In view of above, I do not find any good ground to interfere with the order of the court below.
Let application order IX Rule 13 of the Code of Civil Procedure, 1908 be considered on merits and disposed after giving full opportunity of hearing to the parties .
This petition is consigned to record.
Order Date :- 16.8.2021 Sanjeev