Asha Arora, J. - (1.) This revisional application at the instance of the plaintiffs/petitioners has been directed against an order dated 8th January, 2016 passed by the Learned Civil Judge (Senior Division), Jangipur, Murshidabad in Misc. Case No.9 of 2011 arising out of Partition Suit No.1 of 2008. By the aforesaid order the learned Trial Court allowed an application under section 5 of the Limitation Act filed by the defendants/applicants (opposite parties herein) and condoned the delay in filing the Misc. Case under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the exparte decree passed in Partition Suit No.1 of 2008.
(2.) Learned advocate for the petitioners/plaintiffs strenuously argued that the prescribed period for filing an application under Order 9 Rule 13 CPC as per Article 123 of the Limitation Act is 30 days from the date of the decree or where the summons was not duly served, when the applicant/defendant had knowledge of the decree. The attention of this Court has been invited to the fact that the preliminary decree in the partition suit was passed on 8th September, 2008 after due service of summons upon the defendants and the application for final decree was filed on 20th May, 2009 while the Misc. Case under Order 9 Rule 13 was filed on 31st March, 2011 along with an application under Section 5 of the Limitation Act. It has been contended on behalf of the petitioners that the delay of 954 days in filing the Misc. Case has not been satisfactorily explained. Learned advocate for the petitioners sought to impress upon this Court that the delay was deliberate with mala fide intention to frustrate the exparte decree. The ground made out by the applicants/defendants for condonation of the delay is that the plaintiffs/petitioners had assured them that the dispute would be amicably settled. Such assurance resulted in the delay in filing the Misc. Case. Learned counsel for the petitioners pointed out that the aforesaid application which was filed on behalf of the plaintiffs seeking time for amicable settlement of the matter was rejected by the Trial Court. So the explanation of delay was far from satisfactory. To fortify his submissions, learned counsel for the petitioners placed reliance upon the decisions (Mahabir Singh vs- Subhash and others, 2008 1 SCC 358); (Balwant Singh (Dead) vs Jagdish Singh and others, 2010 8 SCC 685), (Esha Bhattacharjee vs- Managing Committee of Raghunathpur Nafar Academy and others, 2013 12 SCC 649), (H. Dohil Constructions Company Private Limited vs- Nahar Exports Limited and another, 2015 1 SCC 680) and (Sandha Paul vs Reba Mondal, 2015 4 CalHN 38).
(3.) Repudiating the submissions on behalf of the petitioners, learned counsel appearing for the opposite parties/defendants countered that the explanation for the delay given by the applicants/defendants was found satisfactory to the Trial Court so there is no reason to interfere with the said finding in exercise of the revisional jurisdiction of this Court. In support of such submission,;