Arun Tandon, J. - (1.) HEARD Sri Rajesh Ji Verma Advocate on behalf of the petitioners and Sri Manu Advocate holding brief of Sri Ravi Kant Advocate on behalf of respondents. Respondent No. 3, Ram Autar, instituted original suit No. 134 of 1975 against the petitioners for recovery of a sum of Rs. 60,000/ -. The said suit was decreed ex parte on 10.5.1976. After nearly six years the petitioners moved an application dated 10.4.1982 under Order IX, Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree. The application was filed on the allegations that the petitioners had no knowledge of the suit proceedings as summons were not served upon them. On 29.3.1982 when one of the members of the Gaon Sabha informed the petitioners about the mutation application having been filed qua the property (which is subject -matter of the present dispute) the petitioners contacted their Counsel and came to know of the land covered by the Khata being auctioned. Accordingly, an application was filed on 12.4.1982 within 30 days from the date the petitioners obtained knowledge of the ex parte decree for the first time i.e. 29.3.1982.
(2.) AN affidavit was filed in reply to the aforesaid application by the plaintiffs disputing the correctness of the allegations made in the application. The Civil Judge, Bareilly, by means of order dated 19.1.1984 rejected the recall application filed by the petitioner basically on the ground that the petitioner had sufficient knowledge of the aforesaid proceedings. Feeling aggrieved by the aforesaid order of the Civil Judge the petitioners preferred appeal No. 21 of 1984. Learned District Judge, by means of order dated 30.7.1986 dismissed the appeal so filed by the petitioners. At this stage the petitioners filed the present writ petition with the following reliefs: - - (i) A writ of certiorari quashing of order, Annexures -IV and V and judgment and decree dated 10.5.1976 and issue such order writ direction or order as this Hon'ble Court may deem fit and proper. (ii) Award the cost of the petition to the petitioners.
(3.) A counter affidavit has been filed on behalf of the respondents stating that the petitioners have deliberately suppressed material facts in the application for recall of the ex parte order inasmuch as the decree which was passed in the original suit dated 10.5.1976 was put to execution and the property belonging to the petitioners was finally sold in execution of the said decree on 19.7.1979. The bid offered by the respondents was not accepted by the Civil Judge, Bareilly. The respondents preferred a revision which was allowed and ultimately the sale of the property was confirmed in favour of the respondents. Thereafter, a sale certificate was issued in respect of the land in dispute and the respondents had been given actual possession over the land in question through the process of the Court. Suppressing all these facts the petitioners obtained an interim order from this Court. It has been further pointed out that before final auction sale of the property, at least on four earlier occasions the sale of the property in question had taken place and the petitioners were all along present at the time of auction. It is, therefore, alleged that the petitioners had filed the application on incorrect facts and the same has been rightly rejected by the Court below.;