JUBEDA KHATUN Vs. PRABIN DEKA

JUDGEMENT

(1.) Heard Mr. I.H. Laskar, learned counsel for the Appellants. Also heard S.P. Roy, learned counsel for the respondents.

(2.) This appeal under Section 104(1)(i) read with Order 43, Rule 1 (d) of the Code of Civil Procedure, 1908 filed by the Appellants/Proforma Defendants challenging the order dated 18.11.2013, passed by the learned Civil Judge, Nagaon, in Misc Case No. 123/2012, arising out of Title Suit No. 32/2006, illegally dismissing the said Misc Case filed by the Appellant under Section 5 and 14 of the Limitation Act read with Section 151 of the Code of Civil Procedure, 1908, for short, the Code, for condonation of delay in filing the petitioner for setting aside ex-parte order dated 05.10.2007 and final Decree dated 09.07.2010, passed against the appellants/defendants.

(3.) The contentions so raised by the appellants are that the respondents herein as plaintiffs have filed Title Suit No. 32/2006 in the Court of the learned Civil Judge, Nagaon for declaration of their right, title and interest over a plot of land measuring 32 Bighas 4 Kathas 8 Lechas covered by Dag No. 123, 124, 125, 126, 127, 128, 129, 130, 131 and 133 in Periodic Patta No. 125 of Village - Alisinga, Mouza - Lanka, in the District of Nagaon, Assam. In the said suit, the present appellant No. 1 and the predecessor of the appellant Nos. 2(a) to 2(d) were also made parties as proforma defendant Nos. 2 and 3. It is the pleaded case of the appellants that during the pendency of the trial, it was alleged that summons on behalf of the appellant No. 1 was received by one Mustt. Diluwara Begum and on behalf of Late Tahrun Nessa, predecessor of appellant Nos. 2(a) to 2(d), summons was received by herself but in fact both the Appellant No. 1 and late Tahrun Nessa did not receive any summons in respect of Title Suit No. 32/2006, and subsequently, the Suit was decided ex-parte vide order dated 05.10.2007. the respondents has filed Title Execution Case No. 4/2011 for execution of the final Decree dated 09.17.2010 and the summons was served upon the appellants on 03.05.2011.