LexBHAGMAL & ORS versus KUNWAR LAL & ORS
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A B [2010] 8 S.C.R 1104 BHAGMAL & ORS v. KUNWAR LAL & ORS (Civil Appeal No. 5875 of 2005) JULY 27, 2010 [V.S. SIRPURKAR AND DR. MUKUNDAKAM SHARMA, JJ.] Code of Civil Procedure, 1908 - Or. IX r. 13 - Setting C aside ex-parte decree-Application under- Dismissed by trial court holding it to be time barred - Allowed by appellate court - However, set aside by High Court - On appeal, held: Application u/o. IX r. 13 was filed on 08.071988, within 30 days from 22.06.1988 the date when appellants came to know o about the decree, thus, was within time - Due to compromise between the parties, appellants did not attend the suit and were not aware about the proceedings at all - They clearly pleaded that they came to know about the decree when they were served with the execution notice, which was a valid E explanation for delay - Thus, order of High Court is set aside and that of appellate court is restored - Delay/laches. In a suit for declaration of title, possession and permanent injunction in respect ot a house by respondents against the appellants, an ex parte decree F was passed. The appellant came to know about the ex parte decree when the execution proceedings started. The appellants filed an application under Order IX r. 13 CPC for setting aside the decree. It was submitted that since there was an understanding between the parties G that respondent no. 1 would withdraw the suit, the appellants did not attend the further proceedings. The trial court dismissed the application as being time barred. The appellate court allowed the application. The High Court upheld the order of trial court and set aside that of H 1104 BHAGMAL & ORS. v. KUNWAR LAL & ORS. 1105 the appellate court. It held that the appellate court had A exceeded its jurisdiction in allowing the application without condoning the delay. Hence the appeal. Allowing the appeal, the Court · HELD: 1.1 The appellate court was right in holding that due to the compromise effected, the appellants did not attend the suit and, therefore, were not knowing about the proceedings at all. The appellants were justified 8 in not attending the court and that they did not even know about the decree having been passed and, therefore, the C delay in presenting the application was also justified. [Paras 3 and 4] [1110-E-F; 1111-A-B] 1.2 The High Court interfered with the well considered order of the appellate court solely on the ground that o there was no application for condonation of delay made by the appellants before the trial court in support of their application u/o. IX r. 13 CPC. The High Court observed that the appellate Court had not recorded any finding on the question as to whether the filing of the application u/ E s. 5 of the Limitation Act was necessary or not and went on to decide the application on merits and, therefore, it had exceeded its jurisdiction; that the ex-parte decree . was decided on 19.4.1985, the application ought to have · been filed within 30 days from the date of passing of the decree, while the application for setting aside the ex-parte decree was filed on 08.07 .1988 and no application for condonation of delay u/s. 5 of the Limitation Act was filed, F . therefore, in the absence of prayer for condonation of ·.delay, the appellate court could not have allowed the application u/o .. IX r. 13. The High Court was not justified G in taking a hypertechnical view. [Paras 5, 6 and .7] [1111- E.H; 1112-C] 1.3 It is quite clear from the trial court's order that the · trial court entertained the application on merits. It referred H 1106 SUPREME COURT REPORTS [2010] 8 S.C.R. A to the reply of the respondents to the effect that the application for setting aside the ex-parte decree was beyond the limitation. However, the view taken by the trial court was based more on the merits. In fact, it went on to record the finding that there was no compromise and B the theory of compromise and delay on account of that was not acceptable. The trial court has more or the less based its findings regarding delay on the basis of the order sheets. That was not right as the order sheets nowhere bore the signatures of the parties. They were c mechanically written mentioning "parties as before". Therefore, the trial court did not throw the application u/ o. IX r. 13 merely on the basis of the fact that no application for condonation of delay was made. It went on to consider the delay aspec
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