Dismissed

Ashok Kumar v. Sohan Singh and Ors.

Rajasthan HC26 Aug 2019CFA/185/2017

Case brief

AI extract

What is this about?

The High Court of Rajasthan in a civil first appeal dismissed an appeal filed after a delay of 354 days, rejecting the condonation of delay application. The court held the appellant was latched due to service, failure to contest ex-parte proceedings, and lack of application to set aside the lower court order before execution concluded.

What did the court decide?

Application for condonation of delay dismissed; appeal dismissed.

Ashok Kumar Vs Sohan Singh and Ors. — Civil Procedure and Limitation | Rajasthan HC (2019)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

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JODHPUR

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S.B. Civil First Appeal No. 185/2017

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Ashok Kumar S/o Shri Ramjidas, By Caste Khatri, Resident Of Apny Khunja, Bypass Road, Ward No. 03, Hanumangarh Junction, Tehsil And District Hanumangarh Rajasthan.

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----Appellant

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Versus

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Sohan Singh S/o Shri Ram Singh, By Caste Ramgadhiya, Resident Of Village Jandawali, Tehsil And District Hanumangarh Rajasthan.

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Mohan Singh S/o Shri Ram Singh, By Caste Ramgadhiya, Resident Of Village Jandawali, Tehsil And District Hanumangarh Rajasthan.

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Daleep Singh S/o Shri Ram Singh, By Caste Ramgadhiya, Resident Of Village Jandawali, Tehsil And District Hanumangarh Rajasthan.

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Jarnail Singh S/o Shri Ram Singh, By Caste Ramgadhiya, Resident Of Village Jandawali, Tehsil And District Hanumangarh Rajasthan.

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Mejar Singh S/o Shri Jaswant Singh, By Caste Ramgadhiya, Resident Of Village Jandawali, Tehsil And District Hanumangarh Rajasthan.

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Smt. Kamla W/o Shri Manfool Chand, By Caste Oad, Resident Of Revenue Patwari, Village Jandawali, Tehsil And District Hanumangarh Rajasthan

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----Respondents

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For Appellant(s) : Mr. Trilok Joshi For Respondent(s) : Mr. Kishan Bansal Mr. Dron Kaushik Mr. Vishal Singhal

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HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA

Order

26/08/2019

(2 of 3)

[CFA-185/2017]

This appeal has been filed after a period of 354 days against the judgment and decree passed by learned Additional District Judge No.2 Hanumangarh whereby the amount of Rs.11,000/- has been directed to be recovered from the appellantTehsildar alongwith interest @ 6%.

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Learned counsel appearing for the appellant submits that the appellant submits that the appellant did not come to know about the judgment passed by the Court dated 16.01.2016 and he came to know only about the same when in the execution proceeding initiated against him. The trial court sent a communication to the District Collector, Bikaner for recovering the decreetal amount of Rs.25,042/- from the salary of the present appellant. He thereafter collected the necessary documents and has preferred this appeal. He therefore submits that the delay is bonafide and deserves to be condoned. It is also stated that the amount of Rs.25,042/- has already been recovered from his salary and he has now retired and not to pursue this appeal.

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On specific query raised by this Court, it is also informed that the respondent in the original suit, have not preferred any appeal against the judgment dated 16.01.2016.

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Per contra, learned counsel appearing for the respondent-plaintiff submits that the service was duly effected on the appellant and no document has been placed to show that the service was not effect on the appellant. Further he submits that no application for setting aside the ex-parte judgment and decree has been moved under Order 9 Rule 13 by the appellant. He also submits that the appellant has already deposited the amount and has approached this Court after the final order was passed by the trial court in the execution proceeding.

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(3 of 3)

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[CFA-185/2017]

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I have considered the submissions and find that the appellant is guilty of latches. He was duly served at the first instance in the suit proceedings and the Court ordered ex-parte proceeding against him after he did not present himself before the trial court. Subsequently after the judgment having been passed on 16.01.2016 when the respondents initiated execution proceeding, notices were issued to the appellant, who did not even contest the execution proceeding and no application under Order 9 Rule 13 has been moved before the concerned court for setting aside the ex-parte proceeding and the appellant has only approached this Court after the execution proceeding concluded and recovery has already been made. Thus, the application for seeking condonation of delay does not seem to be bonafide and this Court is not satisfied with the reasons given therein.

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Accordingly, application for condonation of delay is dismissed and the appeal is dismissed, being delayed by 354 days, which stands unexplained.

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(SANJEEV PRAKASH SHARMA),J

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2-Sudheer/-

Ashok Kumar v. Sohan Singh and Ors.

Case brief

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Ashok Kumar v. Sohan Singh and Ors.

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