SAHIDULLAH MUNSHI,J. - (1.) This revisional application is directed against order dated 19th May, 2011, passed by the learned Additional District Judge, Hooghly, in Miscellaneous Appeal No.106 of 2007 arising out of Misc. Case No.3 of 1991, which arose from Title Suit No.155 of 1987. The defendants/appellants are the petitioners before this Court. Respondent/opposite party filed a suit for eviction and khas possession before the learned Civil Judge (Junior Division) 1st Court at Serampore which was registered as Title Suit No.155 of 1987. In the said suit the learned Trial Court passed an ex parte judgment and decree on 13th of February, 1990. After such ex parte decree was passed opposite party/decree -holder filed an execution case being Title Execution Case No.9 of 1990 and tried to get possession of the suit property. The deceased father of the present petitioners as defendant filed a Misc. Case being No.3 of 1991 under the provisions of Order IX Rule 13 read with Section 151 of the Code of Civil Procedure. The application for setting aside ex parte decree was made based on a ground that no summon had been issued to the defendants/petitioners. The defendant/petitioners never received any summons from the said Court and the plaintiff, it is alleged, in connivance with the Process Server, fraudulently did not serve any summons upon the defendants/petitioners either through Court or by a registered post. It is the further case of the petitioner that writ of execution was recalled by the learned Court after the petitioner filed an application under Section 47 of the Code of Civil Procedure on 7th January, 1991. On 9th January, 1991, the plaintiff filed the application for setting aside ex parte decree under the provisions of Order IX Rule 13 which was numbered as Misc. Case No.3 of 1991.
(2.) The plaintiff/opposite party entered appearance in the said Misc. Case No.3 of 1991. The plaintiff/opposite party challenged the maintainability of the application under Order IX Rule 13. According to him, the same was filed beyond the prescribed period of limitation and that too without any application under Section 5 of the Limitation Act.
(3.) The said Misc. Case No.3 of 1991 was taken up for consideration by the learned Civil Judge (Junior Division) 1st Court, Serampore and by an order No.113 dated 29th August, 2007, rejected the application filed by the defendant/petitioner under Order IX Rule 13 of the Civil Procedure Code holding, inter alia, that the petitioner has failed to file any application under Section 5 of the Limitation Act because the application was found to be barred by limitation. According to the learned Court, the application under Order IX Rule 13 ought to have been filed within a period of 30 days from the date of the decree. According to the learned Executing Court, the delay is of one year, filing of separate petitions under Section 5 of the Limitation Act was not only technically required but for explaining the delay of such application ought to have been filed by the petitioners. Learned Executing Court has held that without going into the merits of the case he should first consider the question of limitation. According to the learned Judge, as per Article 123 of the Limitation Act, the date of limitation is 30 days from the date of decree, if it is from the date of the ex parte decree then the application under Order IX Rule 13 is clearly barred by law of limitation. It has been noted by the learned Court that the petitioner in the petition as well as in evidence stated that he derived the knowledge about ex parte decree on 7th January, 1991 when the Process Server went to suit premises for executing decree as per order of the Court. The said order was challenged by the petitioner in an appeal being Miscellaneous Appeal No.106 of 2007. The learned Appellate Court below, by its order impugned, affirmed the order passed by the learned Executing Court. The learned Appellate Court below, while affirming the order passed by the Executing Court, held that inasmuch as the appellant had admitted that the parties were involved in different suits before the learned Court below for years together since 1980 and that the Title Suit No.257 of 1983 was pending between them, therefore, the learned Appellate Court below found no justifiable reasons to differ with the findings of the learned Court below and further learned Appellate Court below held that under such circumstances it cannot be held that the petitioners/appellant had no knowledge about Title Suit No.155 of 2007 and the ex parte decree passed by it on 13th February, 1990. The Appellate Court below also held the same view that Misc. Case was filed on 9th January, 1990 which is beyond the period of limitation.;