Revision petition dismissed against orders holding an application to set aside an ex parte decree barred by limitation. Court held that merits, including fraud or service defects, cannot be examined when an Order 9 Rule 13 application is time-barred.
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CR No.2372 of 1992
1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CR No.2372 of 1992
Date of Decision: 5.12.2008
Hari Chand
....Petitioner
Vs.
Jagat Singh & Ors.
..Respondents
Coram: Hon'ble Mr. Justice Vinod K.Sharma
Present: Mr.A.P.Bhandari, Advocate, for the petitioner.
None for the respondents.
Vinod K.Sharma,J. (Oral)
This revision petition is directed against the order dated 7.9.1989 passed by the learned Sub Judge IInd Class, Faridabad as affirmed by learned lower appellate court dismissing an application moved by the petitioner under Order 9 Rule 13 of the Code of Civil Procedure (for short the Code) for setting aside ex parte decree dated 7.1.1980 by holding that the application was barred by limitation.
Respondent/plaintiffs filed a suit to challenge the sale deed on the ground that the land with Chander Pal vendor is ancestral qua plaintiff
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and respondents No.1 and 2 and they being governed by agricultural customs in the matter of alienation power of alienation with Chander Pal was limited and as such sale deed did not affect their rights.
As the parties failed to appear the defendant was ordered to be proceeded ex parte and an ex parte decree was passed.
After a gap of about 5 years Hari Chand petitioner moved an application under Order 9 Rule 13 of the Code for setting aside the ex parte decree on the ground that he was not served with summons in the suit nor he refused to accept the service and that the ex parte decree procured by Jagat Singh and Ram Kumar respondents in collusion with Chander Pal their father was the outcome of fraud played on the court.
The application was contested and a plea was taken that no sufficient ground to set aside the ex parte decree is made out and further that Hari Chand had been duly served and he was also aware of the passing of the decree who intentionally failed to appear.
On the pleadings of the parties the following issues were
framed;-
On issue No.3 finding was returned that the application moved was barred by limitation. The learned lower court observed that application for setting aside the decree was filed after 4 years 11 months and 6 days of
CR No.2372 of 1992
3
the passing of the decree. The court observed that the petitioner in his application had asserted that he acquired knowledge of the impugned decree on 7.12.1984 only and thereafter application was moved on 13.12.1984. However, when he entered the witness box he admitted that he had come to know about the decree on 8.8.1984. The court observed that the application was barred by time from the date of knowledge as the same was filed about 4 months after the knowledge. Consequently application was dismissed.
Appeal also met with the same fate.
Learned counsel for the petitioner contends that in the present
case there was no proper service on the petitioner and therefore, the impugned order cannot be sustained. The plea of the learned counsel for the petitioner cannot be accepted. Learned courts below have rightly held that once the application is held to be time barred the court is not entitled to go into the merits.
Learned counsel for the petitioner further contends that as the decree has been obtained by playing fraud the court ought to have allowed the application for setting aside the ex parte decree.
The decree can be set aside by invoking the provision of Order 9 Rule 13 of the Code which requires that the application has to be moved within 30 days. Once the application has been held to be time barred, merits were not required to be gone into to find out whether the decree was obtained fraudulently.
The findings recorded by the learned courts below are as per established law that the application under Order 9 Rule 13 of the Code can only be moved within 30 days of passing of the decree/knowledge. Once
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application was held to be barred by limitation the learned courts below were justified in rejecting the application.
No ground is made out which may call for interference by this
court.
Dismissed. 5.12.2008 (Vinod K.Sharma) rp Judge
2 issues framed by the court
Whether the revision petition challenging the dismissal of an application to set aside an ex parte decree should be allowed despite the lower courts holding it to be barred by limitation.
Whether consideration of fraud or lack of service is permissible when an application under Order 9 Rule 13 CPC is held to be time-barred.
1 provisions across 1 enactments
Hari Chand
Jagat Singh & Ors.
Vinod K.Sharma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
