- (1.) This is an appeal directed against the order dated 29-10-2002, passed by learned IIIrd Additional District Judge, Bilaspur in Miscellaneous Civil Case No. 19/2002, rejecting an application under Order XLI Rules 19 and 21 read with Section 151 of the Code of Civil Procedure.
(2.) Facts material for disposal of this appeal are that, the plaintiffs had filed a civil suit for possession of land bearing Khasra No. 748/2 area 0.76 acres situated at Village Tifra, District Bilaspur as also for recovery of arrears of rent of Rs. 2,175/- and damages against the defendant M/s. Bharat Petroleum Corporation Limited, in the Court of Civil Judge Class-1, Bilaspur. The said suit was registered as Civil Suit No. 69-A/1998. The defendant remained ex parte in the suit. Learned IVth Civil Judge Class-I, Bilaspur, vide judgment and decree dated 1-12-1998, partly allowed the suit and passed decree against the defendant for payment of arrears of rent. Being aggrieved by the said judgment and decree, the plaintiffs preferred Civil Appeal No. 7A/1999 in the Court of District Judge, Bilaspur. The defendant M/s. Bharat Petroleum Corporation Limited remained ex parte in the appeal. By ex parte judgment and decree dated 21-9-1999, the District Judge, Bilaspur allowed the appeal and for possession and mesne profit passed decree in favour of the plaintiffs.
(3.) The defendant M/s. Bharat Petroleum Corporation Limited filed an application under Order XLI Rules 19 and 21 read with Section 151 of the Code of Civil Procedure through its Power of Attorney Holder B. Krishna Murthy for setting aside the ex parte decree dated 21-9-1999 passed in Civil Appeal No. 7A/1999 on the ground that it was not duly served with the notice of appeal and hence could not appear and contest the appeal before the Court. The defendant came to know about the decree on 12-4-2000 when in execution proceedings process server came to execute the possession warrant. Therefore, on 15-4-2000, the defendant filed an application for setting aside the ex parte decree along with a separate application under Section 5 of the Limitation Act for condonation of delay. The plaintiffs opposed both the applications not only on merit but also on their maintainability.;