No.2 was again ordered vide order dated 19.2.2007. The petitioner had suffered a fracture of neck and right tibia and was admitted in Max City Hospital on 02.02.2007 and discharged on 18.03.2007. During the interregnum, the defendant No.1, brother, had also entered into agreement to sell dated 17.10.2006 with regard to his share. The petitioner could not be present and remained ex parte and coming to know about execution, application under Order 9 Rule 13 CPC was moved on 01.12.2008. Both the Courts below have dismissed the application on the premise that the petitioner had the knowledge of the suit but did not contest the proceedings nor lead any evidence that he was not effectively served. However, he submits that the counsel did not bring on record the aforementioned evidence i.e. medical record which was given to the counsel and in this regard, misc. application has been moved and the medical record is attached along with application as Annexures P-1 to P-7. He submits that evidence of the petitioner was closed in the application under Order 9 Rule 13 CPC and the said order assailed by invoking the provisions of Order 43 Rule 1(a) CPC, in appeal, was affirmed by the lower Appellate Court. He submits that in case one effective opportunity, subject to terms and conditions, is granted, the petitioner shall prove his case.
