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Judgment
The petitioner has preferred this writ petition aggrieved
by order dated 13.09.2012 passed by Civil Judge (Senior
Division), Udaipur and order dated 06.04.2016 passed by
Additional District Judge No.2, Udaipur, vide which the application
filed by the petitioner/defendant under Order 9 Rule 13 CPC was
rejected.
The brief facts of the case are that the
respondent/plaintiff filed a suit for malicious prosecution against
the petitioner on 29.10.1999. The suit was decreed ex parte on
01.04.2004. The execution petition was filed by the plaintiff, in
which notices were served on the petitioner on 29.03.2008. The
petitioner moved an application for setting aside the ex parte
decree on 19.03.2010 stating therein that she received the
information about the ex parte decree from the Advocate of the
plaintiff/respondent on 04.03.2010. The application for setting
aside the ex parte decree was rejected by the trial court on
13.09.2012 and the appeal preferred by the petitioner was
dismissed by the appellate court on 06.04.2016, aggrieved by
which the present writ petition has been filed.
It is contended by counsel for the petitioner that
service of the summons in the suit and the notices in the
execution proceedings were manipulated, as no notices were
served on the petitioner and the petitioner, for the first time, came
to know about the ex parte decree on 04.03.2010.
In support of his contention, counsel for the petitioner
has placed reliance on N. Balakrishnan Vs. M. Krishnamurthy,
AIR 1998 SC 3222, wherein delay of 883 days in filing of
application for setting aside the ex parte decree was condoned.
Counsel for the petitioner has also placed reliance on
The State of West Bengal Vs. The Administrator, Howrah
Municipality & Ors., AIR 1972 SC 749, wherein the Apex Court
has observed that expression "sufficient cause" should receive
liberal construction so as to advance substantial justice when no
negligence or inaction or want of bona fide is imputable to a party.
Counsel for the respondent has opposed the writ
petition. His contention is that the petitioner is in a habit of
changing her signatures. Service of notices has been effected by
two officers of the court and there is no allegation against the
officers. It is also contended that the matter pertains to an
amount of Rs.45,000/- only, and therefore, the question of
manipulating the process server is not probable.
It is further contended by counsel for the respondent
that the petitioner in her application has not mentioned that the
notices of the execution petition were not served upon her. In that
event, since the notices were served on 29.03.2008, the
application under Order 9 Rule 13 CPC having been filed on
19.03.2010 is highly belated.
It is also contended by counsel for the respondent that
the contention of the petitioner that she received the information
on 04.03.2010 from counsel of the plaintiff is also not believable,
as the plaintiff''s counsel has given an affidavit that he has not
informed the petitioner about the ex parte decree.
I have considered the rival contentions of the parties
and have also perused the judgments relied upon by counsel for
the petitioner and have also perused the documents pertaining to
service of notices.
On perusal of the signature on the notices, which were
sent in pursuance of the application filed for execution of the
decree, it appears that the same bears the signatures of the
petitioner as the same has similarity with the signatures put by
the petitioner on her application for setting aside the ex parte
decree. The court below has therefore, rightly held that the
notices of the execution petition were served on the petitioner on
29.03.2008 and the application for setting aside the ex parte
decree is highly belated.
There being no sufficient cause pleaded by the
petitioner for not moving the application within the prescribed period of thirty days after receipt of the information on
29.03.2008, there was no justification for the trial court and the
appellate court to set aside the ex parte decree. The rulings cited
by counsel for the petitioner do not apply to the facts of the
present case, as there is no bona fide of the petitioner for not
moving the application immediately after receipt of the notice of
execution.
The orders impugned therefore, do not call for any
interference and the writ petition deserves to be dismissed.
Consequently, the present writ petition is dismissed.
The stay application also stands disposed.