Bela M. Trivedi, J. - (1.) The present petition is directed against the order dated 29.1.07 passed by the Addl. District Judge, Hindaun City, in the application being NO. 67/07 seeking condonation of delay occurred in filing the appeal against the ex-parte decree dated 19.9.96 passed by the Addl. Civil Judge, Hindaun City, in the Civil Suit No. 52/94.
(2.) The short facts giving rise to the present petition are that originally the suit being No. 52/94 was filed by the respondent No.3 (original plaintiff) Shri Kaluwa, against the respondent Nos. 4 and 5 and the father of the present petitioners i.e. Badri Narain (original defendants) seeking recovery of Rs. 21,300/-. The said suit was proceeded ex-parte and the trial court passed the decree on 19.9.96 against the said defendants. It further appears that the respondent No.5 i.e. Tehsildar, Todabhim had made an application for setting aside the said ex-parte decree dated 19.9.96, under Order IX Rule 13 of CPC, which was dismissed by the trial court on 28.5.05. Against the said order dismissing the application under Order IX Rule 13 of CPC, an appeal being No. 15/05 was also preferred and the same was also dismissed by the appellate court on 25th September, 2006. It appears that thereafter the present petitioners being the legal heirs of the original defendant No.3 Badri Narain, preferred an appeal before the appellate court challenging the ex-parte decree dated 19.9.96 after about 10 years of passing of the said decree, and also filed an application seeking condonation of delay. The said appeal being barred by law of limitation, and there being gross delay of 10 years, the appellate court vide the impugned order dated 29.1.07 rejected the same. Being aggrieved by the said order passed by the appellate court the present petition has been filed by the petitioners invoking the supervisory jurisdiction of this court under Article 227 of the Constitution of India.
(3.) It has been sought to be submitted by Senior Counsel Mr. Ranjan for the petitioners that the petitioners were not aware about the ex-parte decree passed by the trial court in 1996 and came to know only when the execution proceedings were filed against them. According to him the original defendant No. 3 Badri Narain having already expired at the time of passing of the said ex-parte decree, the said decree was nullity in the eye of law and, therefore, could not have been executed. He also submitted that the appellate court has committed an error in dismissing the application seeking condonation of delay as well as the appeal vide impugned order and therefore, the appeal was required to be heard on merits.;