Nirkewal Dass vs Mahant Ram Roop and Others

J.V. Gupta, J.—This petition is directed against the order of the Additional District Judge, Amritsar, dated 18th August, 1978, whereby the order of the trial Court declining to set aside the ex-parte decree was maintained in appeal.

Mahant Amar Dass deceased predecessor in-interest of Mahant Ram Rup, who also died during the pendency of the petition, filed a suit against Bakshi Raghbit Singh for possession by ejectment of some property situated in Putlighar in the year 1968. Bakshi Ragh-bir Singh took up the plea that he had transferred a part of the disputed property to the present Petitioner Nirkewal Dass and as such he was a necessary party. On that plea, the present Petitioner was impleaded as a Defendant in the suit on 30th June, 1969 Several efforts were made by the Court to serve him but to no effect He refused to accept service of the summons at Delhi. Ultimately, he was served through publication in the Daily Hindi Samachar, Jullundur, dated 5th November, 1969 for 20th November, 1969, but in spite of that service, he did not attend the Court and as such he was proceeded against ex-parte Bakshi Raghbir Singh Defendant originally contested the suit, but lateron he also absented himself and was proceeded against ex-parte. Ultimately, the exparte decree dated 27th January, 1971, was passed in favour of Mahant Amar Dass Plaintiff against both the Defendants. Execution proceedings were taken and on 28th November, 1972, possesssion of a part of the suit property was obtained by the decree holder. The Petitioner-Defendant filed the application dated 2nd January, 1973, under Order 9, Rule 13, CPC Code, for setting aside the ex-parte decree dated 27th January, 1971, on the ground that he was not personally served in the suit and that he same to know of the decree on 30th December, 1972, from Raghbir Singh Defendant and on th3t information he filed the present application. The application was contested, inter alia, on the ground that it was barred by time and there wan no ground for setting aside the ex-parte decree The trial Court found that the application was barred by time as the Defendant Nirkewal Dass has failed to prove that he get the knowledge of the decree for the first time on 30th December, 1972, as alleged Consequently, the application was dismissed. In appeal, the learned Additional District Judge, Amritsar, affirmed the said finding of the trial Court and thus maintained the order dismissing the application. Dissatisfied with the same, the Defendant has filed this petition in this Court.

After hearing the learned Counsel for the Petitioner, I do not find any merit in this petition. Surprisingly enough the Defendant himself did not appear in the witness box and stated that he got the knowledge of the decree for the first time on 30th December, 1972, as alleged in the application. Thus, it has been concurrently found by both the Courts below that the application was barred by time. In these circumstances, I do not find any illegality or infirmity in the impugned order as to interfere with in this petition. Consequently, the petition fails and is dismissed with costs.