PRAFULLA SARKAR Vs. KANAN DAS; KAKAN DAS; DEBABRATA DAS; SUBRATA DAS

JUDGEMENT

(1.) By means of this petition filed under Article 227 of the Constitution of India, the petitioner has challenged the order dated 15.09.2008 passed in Civil Misc. No.20 of 2008 rejecting the prayer for condonation of delay in filing the petition for setting aside the judgment and decree dated 06.12.2007 passed in Title Suit No. 22 of 2007.

(2.) Briefly stated the facts of the case are that the respondents herein filed a suit before the learned trial Court against the present petitioner. That suit was decreed ex-parte in favour of the plaintiff vide judgment and decree dated 06.12.2007. An application under Order IX, Rule 13 for setting aside the ex-parte decree was filed and along with the said application an application under Section 5 of the Limitation Act for condoning the delay in filing the application was also filed. The learned trial Court dismissed the application for condoning the delay by a detailed order dated 15.09.2008 in Civil Misc. 20 of 2008 and held that the petitioner herein had made out no ground for condoning the delay in filing the application under Order IX, Rule 13 of the CPC. Another order was passed on 15.09.2008 in Misc. 19(R) of 2008 relevant portions of which reads as follows:

(3.) The main application was dismissed but not on contest. The present revision petition has been filed challenging the order rejecting the application for condonation of delay. A preliminary objection has been raised by the respondents that the present petition is not maintainable since the order passed in the condonation of delay application has merged in the order dismissing the main, misc. application and therefore, the remedy of the petitioner was to file an appeal and not to file the present revision petition.