TaxTMI 
TaxTMI 
2010 (7) TMI 1242
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....e Trial Court is challenged herein. A Civil Suit bearing No. 321-A of 1984 came to be filed by the respondents against the father of the petitioner No. 1 namely Kallu. Kallu died during the pendency of the suit and his legal heirs were brought on record. The suit was for declaration of title, possession and permanent injunction against the appellants/defendants in respect of the house in dispute. The Court proceeded ex-parte and the decree came to be passed. It is only when the execution proceeding started that the appellants/defendants allegedly came to know about the decree and moved an application under Order IX Rule 13 read with Section 151 of the Civil Procedure Code (hereinafter called `CPC' for short) for setting aside the ex-par....
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.... Order IX Rule 13 deserved to be allowed and held that the Trial Court had erred in law in not allowing the application. The appeal came to be allowed and the appellate Court directed the Trial Court to decide the case on merits after hearing the parties. 3. A Civil Revision came to be filed under Section 115 CPC before the High Court. The High Court took the view that the application filed by the appellants/defendants under Order IX Rule 13 was barred by time and the appellate Court had not recorded any finding on the question as to whether the filing of the application under Section 5 of the Limitation Act was necessary or not and, therefore, the appellate Court had exceeded its jurisdiction in allowing the application without condonin....
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....tures of the parties on any of those order sheets. Therefore, one thing was certain that the appellate Court was right in holding that due to the compromise effected, the appellants/defendants did not attend the suit and, therefore, were not knowing about the proceedings at all. 4. The appellate Court also has pointed out that the evidence was led before the Trial Court in support of the application under Order IX Rule 13 and in that, the appellants/defendants had examined the witnesses like Rambharose (AW-1), Shanta Bai (AW-2), Jabia (AW-3), Babulal (AW-4), Bhagmal (AW-5), Genda Lal (AW-6), Dashrat Singh (AW-7), Bhurra @ Aziz (AW-8) and Nand Kishore (AW-9). The appellate Court also recorded the finding that the compromise deed was also ....
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....on the question as to whether the filing of the application under Section 5 of the Limitation Act was necessary or not and went on to decide the application on merits and, therefore, it had exceeded its jurisdiction. The High Court also commented on the fact that the ex-parte decree was decided on 19.4.1985, while the application for setting aside the ex-parte decree was filed on 8.7.1988 and that no application for condonation of delay under Section 5 of the Limitation Act was filed. 6. Relying on Article 123 of the Limitation Act, the High Court took the view that the application ought to have been filed within 30 days from the date of passing of the decree and since it was not so filed, at least a condonation of delay application shou....
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....y pleaded that they did not earlier come to the Court on account of the fact that they did not know about the order passed by the Court proceeding ex-parte and also the ex-parte decree which was passed. It was further clearly pleaded that they came to know about the decree when they were served with the execution notice. This was nothing, but a justification made by the appellants/defendants for making the Order IX Rule 13 application at the time when it was actually made. This was also a valid explanation of the delay. The question of filing Order IX Rule 13 application was, in our opinion, rightly considered by the appellate Court on merits and the appellate Court was absolutely right in coming to the conclusion that appellants/defendants....
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....our opinion, Article 123 cannot be, in the facts of this case persuade us to take the view that the limitation actually started from the date of knowledge, as the appellants/defendants had no notice of the decree or the proceedings which the respondents had promised to terminate. Shri Acharya then tried to persuade us by suggesting that unless the application was filed for condonation of delay, the court had no jurisdiction to entertain the application for setting aside the decree. He has based this contention on the basis of a reported decision of this Court in Sneh Gupta v. Devi Sarup and Ors. 2009 (6) SCC 194 and more particularly, the observations made in para 70 therein. In our opinion, the facts of this case were entirely different, a....