Punjab-Haryana High Court
Major Singh And Others vs M/S Mohri Ram Charan Dass on 28 August, 2023
2023:PHHC:113177
C.R. No. 840 of 2020 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Sr. No.277
Case No. : C.R. No. 840 of 2020
Date of Decision : August 28, 2023
Major Singh and others .... Petitioners
vs.
M/s Mohri Ram Charan Dass .... Respondent
CORAM : HON'BLE MR. JUSTICE GURBIR SINGH.
* * *
Present : Mr. Peeush Gagneja, Advocate
for the petitioners.
Mr. Priyanshu Kamra, Advocate
for the respondent.
* * *
GURBIR SINGH, J. :
1. Challenge in this revision petition is to the order dated
22.11.2018 (Annexure P-4), passed by learned Civil Judge (Junior Division),
Abohar, whereby the application of the petitioners, filed under Order 9 Rule
13 CPC, has been dismissed. Further challenge is to the order dated
10.12.2019 (Annexure P-5), passed by learned Additional District Judge,
Fazilka, whereby the appeal filed by the petitioners against the aforesaid
order has been dismissed.
2. The brief facts, culled out from the paper book, are that the
respondent-plaintiff filed a suit for recovery. The same was decreed ex-parte
vide judgment and decree dated 22.02.2014 (Annexure P-1). Respondent
filed the execution for recovery of the decretal amount against the
petitioners-judgment debtors. The petitioners, on coming to know about
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passing of ex-parte decree, moved an application under Order 9 Rule 13
CPC (Annexure P-2) for setting aside the judgment and decree dated
22.02.2014. Respondent-plaintiff contested the application. Issues were
framed on the basis of pleadings of the parties. The parties were allowed to
lead the evidence. Vide impugned order dated 22.11.2018 (Annexure P-4),
the said application was dismissed. The petitioners filed an appeal against
the said order, which was also dismissed vide judgment dated 10.12.2019
(Annexure P-5).
3. Learned counsel for the petitioners has argued that the
petitioners-defendants were not having any knowledge regarding filing of
the suit. They were not served in any manner. In the suit, wrong address of
petitioners-defendants was mentioned as "Dhani Kandu Khera", whereas
their correct address was "Dhani Teliann Wali, Village Kandu Khera". Both
the villages are separate from each other, have different Panchayats and
there is a difference of approximately six kilometers between both the
villages.
4. It has further been contended that the learned Courts below
have failed to take into consideration Ration Card (Ex.A-1), Aadhar Card
(Ex.A-2) and Voter List (Mark-A). Chowkidar of Village Kandu Khera was
examined by the petitioners as AW-2, who made statement that he was
Chowkidar of both the villages and the Process Server of the Court never
met him for the service of the petitioners-defendants. Therefore, judgments
of the Courts below deserve to be set aside.
5. Learned counsel for the respondent, at the outset, has argued
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that the application in question has been filed on the wrong facts and
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therefore, deserves to be set aside. He has further contended that the
petitioners appeared before the Executing Court on 27.04.2016 through
Advocate, who filed 'Memo of Appearance' on behalf of the petitioners,
whereas application for setting aside the ex-parte decree was moved on
30.05.2016 on the ground that the petitioners came to know about the ex-
parte judgment and decree only on the previous day of filing the application
which means that as per pleadings, petitioners came to know about the
passing of ex-parte decree only on 29.05.2016, whereas their counsel had
already appeared on 27.04.2016, on their behalf, before the Executing Court.
The application was filed beyond 30 days of having knowledge of passing of
ex-parte decree. So, certainly the application is barred by limitation and is so
rightly held by the learned Courts below. Thus, the learned Courts below
have rightly dismissed the application of the petitioners and appeal filed by
them.
6. I have heard the submission of learned counsel for the parties
and also perused the case file.
7. In the application (Annexure P-2), it is pleaded that the
applicants came to know about the ex-parte judgment and decree when the
respondent-plaintiff told the applicants on the previous day that he had
obtained ex-parte decree against the applicants, whereas in the judgment
passed by the Trial Court, it is clearly mentioned that in the Execution
Application filed by the respondent-plaintiff, in pursuance of the notices
issued, the petitioners-defendants appeared through their counsel namely
Shri S. S. Jammu on 27.04.2016, who filed "Memo of Appearance" on
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behalf of the petitioners. As per provisions of Article 123 of the Limitation
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Act, 1963, the application for setting aside the ex-parte judgment and decree
can be filed within 30 days from the date of knowledge. The application has
certainly been filed after more than 30 days of coming to know about
passing of ex-parte judgment and decree. So, the application is barred by
law of limitation. It has also been rightly held by the Courts below that the
application in question has been filed apparently on the wrong fact that the
petitioners came to know only on the previous day of filing the application
about the passing of ex-parte judgment and decree.
8. In view of the above discussion, I find no merit in the present
revision petition and the same is accordingly dismissed.
9. Pending applications, if any, shall stand disposed of along with
this judgment.
August 28, 2023 (GURBIR SINGH)
monika JUDGE
Whether speaking/reasoned ? Yes/No.
Whether reportable ? Yes/No.
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