DHEKIAJULI MAROWARI PANCHAYAT AND 2 ORS Vs. BHUBAN BORAH
LAWS(GAU)-2018-9-11
HIGH COURT OF GAUHATI
Decided on September 04,2018

Dhekiajuli Marowari Panchayat And 2 Ors Appellant
VERSUS
Bhuban Borah Respondents

JUDGEMENT

Prasanta Kumar Deka, J. - (1.) Heard Mr. S. Sahu, the learned counsel for the petitioners. Also heard Mr. P. Sundi, the learned counsel for the respondent.
(2.) The present respondent is the defendant in Title Suit No.88/2011 which was preferred by the present petitioner society for declaration of right, title and interest and for recovery of possession against the sole defendant/respondent. The said suit was decreed ex-parte on 12.06.2012. Subsequent thereto, the said ex-parte decree was put into execution in Title Execution Case No.6/2016 in the Court of learned Munsiff No.1 at Tezpur. Notice was issued to the respondent as the judgment debtor and the same was served in the second week of May, 2016. Having received the said notice the petitioner contacted the learned counsel to make an enquiry and after enquiry it came to the knowledge of the respondent that the said Title Suit was decreed ex-parte and an execution proceeding is pending. Thereafter two separate applications were filed by the present respondent, one under Order 9 Rule 13 of the Code of Civil Procedure, 1908 (CPC) for setting aside the ex-parte decree and the other one for condonation of delay of more than 4 years under Section 5 of the Limitation Act, 1963. The delay condonation petition was registered as Misc (J) Case No.74/2016 and the other application under Order 9 Rule 13 of the CPC was registered as Misc (J) Case No.73/2016. The learned Executing Court took up the delay condonation petition and vide the impugned order dated 19.12.2017 condoned the delay by imposing a cost of Rs.2,000.00. However, the other application under Order 9 Rule 13 of the CPC is yet to be decided. The present petitioners being aggrieved by the said order dated 19.12.2017 preferred this revision application challenging the same.
(3.) Mr. Sahu submits that the order impugned is liable to be set aside inasmuch as on one hand the learned court below held that the respondent was negligent in conducting the suit and on the other hand, the same court, in the interest of justice, allowed the prayer for condonation of delay of more than 4 years. Further it is submitted that from the contents of the delay condonation petition it is apparent that the respondent was negligent in conducting the suit and as such the learned court below ought to have confined its finding that the petitioner is negligent without condoning the said delay. It is further submitted that from the delay condonation petition it is clear and apparent that there is an imputation of not informing the progress of the suit to the present respondent by the counsel conducting the suit at Tezpur. However, the said counsel is not made party in the said delay condonation petition in order to prove the veracity of the imputation made against the said counsel who is not even named in the petition. Mr. Sahu further referring to the written objection filed by the present petitioners submits that the negligent conduct of the respondent was very much raised before the learned court below but the same was not even considered by the learned court below while passing the said impugned order. Under such circumstances Mr. Sahu submits that the impugned order is liable to be set aside.;


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