Miscellaneous appeal against rejection of a judgment debtor's application to set aside an ex parte specific performance decree. The High Court held the appellant's nine-year negligence and inaction did not constitute sufficient cause, affirmed the trial court's order, and dismissed the appeal.
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CGHC010267232026
2026:CGHC:30919
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
MA No. 112 of 2026
Bhagirathi Tamrakar S/o Late Shri Kundan Mal Tamrakar, Aged About 65 Years R/o Old Gurudwara, Opposite Vaheguru Travels, Third House Of The Street, Station Road Durg, Tahsil And Distt - Durg (C.G.).
... Appellant/applicant
versus
Bhi. Maheshwar Rao S/o Bhi. Venkat Rao, Aged About 39 Years R/o Bhimapara, Tahsil And Distt- Durg (C.G.).
... Respondent/Non-Applicant
For Appellant : Mr. Keshav Dewangan, Advocate. For Respondent : None.
Hon’ble Shri Justice Naresh Kumar Chandravanshi, J
Order on Board
(21st July, 2026)
This miscellaneous appeal has been preferred by the appellant/defendant challenging the order dated 15.5.2026 passed by II District Judge, Durg in MJC Case No.494/2024 whereby application filed by the appellant/defendant/judgment debtor under Order 9 Rule 13 of CPC has been rejected.
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Tamrakar and another, was filed by the respondent/plaintiff for specific performance of contract in which the appellant had engaged a counsel but the said counsel without informing the appellant remained absent on 11.5.2016 which led to initiation of ex parte proceeding against him and ultimately passing of the ex parte judgment and decree on 5.11.2016 by the II Upper District Judge, Durg in Civil Suit No.89-A/2015. Learned counsel further submits that since 17.12.2015 to 5.5.2016, the counsel continuously appeared on behalf of the appellant/defendant, however, subsequently he remained absent without informing the appellant/defendant. He submits that the trial Court also did not issue any notice to the appellant/defendant and for the first time, the appellant/defendant came to know about passing of the ex parte judgment and decree on 22.8.2024 when notice of attachment warrant was served to him. He further submits that delay occurred in filing the application under Order 9 Rule 13 of CPC i.e. from 5.11.2016 to 22.8.2024 ought to have been condoned by the trial Court and the aforesaid application ought to have been allowed. He submits that the appellant/defendant had filed an application under Section 5 of the Limitation Act along with the application under Order 9 Rule 13 of CPC but no specific order has been passed in respect of the application under Section 5 of the Limitation Act. Thus, the impugned order suffers from perversity and illegality, therefore, he prays that the appeal may be allowed and the impugned order may be set aside.
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documents annexed with the appeal including the impugned order.
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report evidencing dispatch of the registered notice, the Executing Court repeatedly issued warrants of attachment against the appellant/defendant, which ultimately came to be served upon him. Despite these developments, the appellant/defendant entered appearance in the execution proceedings only on 18.10.2024. The aforesaid facts clearly establish that the appellant remained grossly negligent and wholly inactive in prosecuting his case for almost nine years. Even assuming that his counsel had failed to keep him informed about the proceedings, such omission on the part of the counsel could not absolve the appellant of his own obligation to remain vigilant regarding litigation instituted against him. A litigant who has engaged counsel cannot remain in complete oblivion for years together without making the slightest effort to ascertain the status of his case. The law assists the vigilant and not those who sleep over their rights.
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Rule 13 of CPC nor deserves indulgence in the exercise of judicial discretion.
Digitally signed by MOHD MOHDAKHTAR AKHTAR KHAN KHAN Date:2026.07.22 16:31:30 +0530
Sd/ (Naresh Kumar Chandravanshi) Judge
Khan
2 issues framed by the court
Whether the trial court erred in rejecting the judgment debtor's application under Order 9 Rule 13 CPC to set aside the ex parte decree.
Whether failure to pass a separate order on the Section 5 Limitation Act application vitiated the rejection.
2 provisions across 2 enactments
Bhagirathi Tamrakar
Bhi. Maheshwar Rao
Naresh Kumar Chandravanshi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
