Madhya Pradesh High Court
Smt.Shyamkumari vs Deepak Kumar on 25 August, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:19268
1 CR-117-2011
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 25th OF AUGUST, 2025
CIVIL REVISION No. 117 of 2011
SMT.SHYAMKUMARI
Versus
DEEPAK KUMAR
Appearance:
Shri Prashant Sharma, Advocate for the applicant.
None for the respodnent.
ORDER
The Civil Revision, under Section 115 of CPC, has been filed against
the order dated 14-12-2009 passed by III Additional District Judge, Vidisha,
in Misc. Civil Appeal No. 11A/2009, as well as, order dated 15-5-2009
passed by Civil Judge, Class-I, Vidisha, in MJC No. 5/2005, by which an
application filed by applicant under Order 9 Rule 13 CPC for setting aside ex
parte decree has been rejected.
2. It is the case of the applicant that the respondent filed a suit for
recovery of Rs.41,000. The applicant, after receiving notice, appeared before
the trial Court. On 18-6-2003, the presiding officer was on leave and
accordingly the case was adjourned for 4-8-2003. On 4-8-2003, the presiding
officer was transferred and therefore the court was vacant, and accordingly
the case was fixed for 2-12-2003. In the meanwhile, the case was transferred
from Kurwai to Vidisha and no notice of such transfer was given to the
applicant, and accordingly the trial court at Vidisha proceeded ex parte
NEUTRAL CITATION NO. 2025:MPHC-GWL:19268
2 CR-117-2011
against the applicant and ultimately passed an ex parte judgment and
decree. Thereafter, the applicant filed an application under Order 9 Rule 13
CPC which was rejected by the trial court and the appeal has also been
dismissed by the appellate court.
3. Challenging the orders passed by the Courts below, it is submitted
by counsel for the applicant that the applicant was vigilantly appearing
before the trial Court at Kurwai. On 4-8-2003 the case was adjourned
because the presiding Officer was transferred and the court was lying vacant,
and accordingly the case was fixed for 2-12-2003. However, in the
meanwhile, the case was transferred to Vidisha without any information to
the applicant. Even the Court at Vidisha did not issue notice to the applicant
after the case was transferred to its Court, and accordingly the applicant was
not aware of the fact that the case has been transferred to Vidisha, which
resulted in passing of an ex parte decree. Thus, it is submitted that the
applicant has made out a sufficient ground for setting aside the ex parte
judgment and decree passed by the trial Court.
4. Heard the learned counsel for the applicant.
5. Section 17 of the Limitation Act reads as such:
17. Effect of fraud or mistake.- (1) Where, in the case
of any suit or application for which a period of
limitation is prescribed by this Act,--
(a) the suit or application is based upon the fraud
of the defendant or respondent or his agent; or
(b) the knowledge of the right or title on which a
suit or application is founded is concealed by the
fraud of any such person as aforesaid; or
(c) the suit or application is for relief from the
consequences of a mistake; or
(d) where any document necessary to establish the
right of the plaintiff or applicant has been
NEUTRAL CITATION NO. 2025:MPHC-GWL:19268
3 CR-117-2011
fraudulently concealed from him,
the period of limitation shall not begin to run until
plaintiff or applicant has discovered the fraud or the
mistake or could, with reasonable diligence, have
discovered it; or in the case of a concealed document,
until the plaintiff or the applicant first had the means of
producing the concealed document or compelling its
production:
Provided that nothing in this section shall enable any
suit to be instituted or application to be made to recover
or enforce any charge against, or set aside any
transaction affecting, any property which-
(i) in the case of fraud, has been purchased for
valuable consideration by a person who was not a
party to the fraud and did not at the time of the
purchase know, or have reason to believe, that any
fraud had been committed, or
(ii) in the case of mistake, has been purchased for
valuable consideration subsequently to the
transaction in which the mistake was made, by a
person who did not know, or have reason to
believe, that the mistake had been made, or
(iii) in the case of a concealed document, has been
purchased for valuable consideration by a person
who was not a party to the concealment and, did
not at the time of purchase know, or have reason to
believe, that the document had been concealed.
(2) Where a judgment-debtor has, by fraud or force,
prevented the execution of a decree or order within the
period of limitation, the court may, on the application of
the judgment-creditor made after the expiry of the said
period extend the period for execution of the decree or
order:
Provided that such application is made within one
year from the date of the discovery of the fraud or the
cessation of force, as the case may be.
(Underline Supplied)
Thus, it is clear from Section 17(1) that the period of limitation shall
not begin to run unless and until the applicant or appellant was able to
discover the mistake or fraud by exercising reasonable diligence. Therefore,
lack of knowledge by itself is not sufficient to condone the delay, and the
person claiming lack of knowledge has to prove that in spite of reasonable
NEUTRAL CITATION NO. 2025:MPHC-GWL:19268
4 CR-117-2011
diligence he could not discover the fact/fraud.
6. In the present case, the applicant was appearing before the trial
Court at Kurwai. On 04-08-2003, the case was adjourned on the ground that
the presiding Officer has been transferred and the Court was lying vacant.
The case was thereafter fixed for 02-12-2003. It is not the case of the
applicant that on 02-12-2003 when he appeared before the trial court at
Kurwai, then he found that the case has already been transferred. It is not the
case of the applicant that he went to Vidisha Court and tried to find out the
status of his trial but he could not gather information in spite of his best
efforts. Merely because on 04-08-2003 the case was adjourned on account of
non-availability of the presiding Officer and thereafter the case was
adjourned, that by itself is not sufficient to set aside the ex parte decree
because it was expected from the applicant to exercise reasonable diligence
to find out the status of his case at Kurwai. If the applicant was not aware of
the transfer of the case to Vidisha, then as a natural consequence it was
expected that he should have appeared before the trial Court at Kurwai on
02-12-2003. As already pointed out, there is no whisper that applicant ever
appeared before the trial Court at Kurwai on 02-12-2003. Thus, it is clear that
the contention of the applicant that he was not aware of the transfer of his
case to Vidisha is misconceived and false, even to the knowledge of the
applicant.
7. Under these circumstances, this Court is of considered opinion that
no good ground was made out by the applicant for setting aside the ex parte
judgment and decree.
NEUTRAL CITATION NO. 2025:MPHC-GWL:19268
5 CR-117-2011
8. Accordingly, the dated 14-12-2009 passed by III Additional District
Judge, Vidisha, in Misc. Civil Appeal No. 11A/2009, as well as, order dated
15-5-2009 passed by Civil Judge, Class-I, Vidisha, in MJC No. 5/2005, are
hereby affirmed.
9. Civil revision fails and is hereby dismissed.
(G. S. AHLUWALIA)
JUDGE
(and)
