Rajiv Joshi, J. - (1.) This is defendants second appeal under section 100,C.P.C. arising out of the suit filed for permanent injunction as well as cancellation of sale deed executed in favour of defendant-appellants. The suit was decreed ex parte vide order dated 1.11.2014. Subsequently, an application under Order 9 Rule 13 CPC was filed for setting aside the ex parte decree. The ground taken for setting aside the ex parte decree was that the ex parte decree came to the knowledge of the defendant-appellants on 13.12.2014. The said application was supported by an application under Section 5 of the Limitation Act. The application filed under Section 5 of the Limitation Act was rejected and consequently the application under Order 9 Rule 13 was also rejected vide order dated 31.3.2015 by the trial court. After exhausting said remedy, the defendant-appellants filed an appeal under Section 96, C.P.C. alongwith an application for condonation of delay under Section 5 of the Limitation Act on 4.4.2015. The said application was supported by an affidavit and the explanation given was to the effect that the ex parte decree came into knowledge of the defendant on 13.12.2014, thereafter they pursued the application for setting aside the ex parte decree under Order 9 Rule 13, which ultimately was rejected on 31.3.2015 and thereafter within 4 days, the appeal was filed along with delay condonation application on 4.4.2015. The plaintiff has not contested the said application and has not filed any counter affidavit to the Section 5 application. The lower appellate court vide judgment and decree dated 23.1.2016 rejected the said application and consequently, the appeal was also dismissed. The order passed by the lower appellate court dated 23.1.2016 rejecting the Section 5 application of the Limitation Act as well as the judgment and decree dated 1.11.2014 of the trial court are impugned in the present appeal.
(2.) I have heard Sri Pradeep Kumar Verma, learned counsel for the appellants and Sri Bhola Nath Verma, learned counsel appearing on behalf of plaintiff-respondent Ist set.
(3.) This appeal was admitted on 4.4.2016 on the following substantial question of law: "1. Whether the impugned order dated 23.1.2016 passed by first appellate court without considering the period spent during pendency of restoration application, misc. case no. 34 of 2014 before the trial court, is erroneous and perverse ? If so, its effect ?";