- (1.) BY means of present writ petition, petitioner has challenged? the order of the Court below by which? his delay condonation? application? filed along with application under order 9 Rule 13 CPC has been rejected on the ground that proper explanation for the delay has not been explained. Against the aforesaid order revision was filed being Revision No. 30 of 2010, which has also been rejected vide order dated 05.8.2010, hence this writ petition.
(2.) THE suit was filed by plaintiff-respondent for permanent injunction against defendant-petitioner being Suit No. 446 of 2004. The said injunction has been sought? by the respondent-plaintiff on the ground that the petitioner is interfering in the possession of Plot No. 133. On the other hand petitioner claims to be in possession over the said plot by virtue of sale-deed executed by the respondent-plaintiff dated 17.1.1997. The said sale-deed is said to be registered sale-deed. The allegation of petitioner is that subsequently by moving an application before the Registrar the Plot No. 133 was changed to 134. According to the petitioner for the aforesaid change in the Plot Number in the registered sale-deed, no notice was issued to the petitioner. He was not aware of the said proceeding (Titimma). It is alleged that the suit was proceeded with and ultimately the suit was decreed in favour of? the plaintiff-respondent by an ex-parte decree on 21.8.2006. The petitioner, thereafter, moved an application under Order 9 Rule 13 to set aside the ex-parte decree along with delay condonation application, which has been rejected on the ground that proper explanation of delay has not been given. A revision was filed and Revisional Court also dismissed the revision. Shri S.P. Pathak appearing for the respondent, however, states that the petitioner? had full knowledge of the proceeding and as well as? summons were also served and publication was made in local newspaper and therfore, it cannot be said? that petitioner had no knowledge of proceeding. It is further pointed out that petitioner himself claims? knowledge of aforesaid decree on 17.5.2008, whereas during the execution proceeding in respect to the aforesaid ex-parte decree, petitioner had already moved application before Executing Court on 05.3.2008 itself for adjournment. Therefore, the claim of the petitioner that he came to know of the ex-parte decree only on 17.5.2008 is totally incorrect. It is further submitted that not only? petitioner stated incorrectly the date of knowledge, however, he has also tried to mislead the Court by filing a false affidavit, therefore, no indulgence should be granted. I have considered the submissions made by the learned counsel for the petitioner, learned counsel for the respondent and perused the impugned orders.
(3.) IT is not disputed that the aforesaid decree? is an ex-parte decree against which petitioner has filed application for recall and also condonation of delay in filing the aforesaid? recall application on the ground that he had no knowledge of the proceeding. He claims to have obtained knowledge only on 17.5.2008. However, it is not disputed that for the execution of the aforesaid decree before Execution Court, the petitioner himself had filed an application? as far back as on 05.3.2008 for adjournment of the Execution Case, therefore, obviously petitioner had full knowledge of proceeding much prior to 17.5.2008 and therefore, claim of the petitioner cannot be accepted that he came to know of the ex-parte decree only on 17.5.2008. In view of the aforesaid, I am not inclined to interfere with the order impugned. The writ petition is accordingly dismissed. It is open for the petitioner to pursue any remedy that may available to him under? the Civil Procedure Code or any other law.;