P.K.LOHRA,J. - (1.) Appellant-defendant has filed this appeal for assailing the order dated 17.04.2013 passed by the Additional District and Sessions Judge No.2, Udaipur whereby, his application for setting aside ex-parte judgment and decree under Order 9, Rule 13 read with Section 151 CPC was rejected.
(2.) The facts apposite for the propose of this appeal are that the respondent-plaintiff instituted a civil suit against the appellant for recovery of a sum of 2,34,931.25/-. In the suit after service of summons on the appellant/defendant, the learned Court below preceded exparte on 11.01.2005 and eventually, the suit was decreed ex-parte against the appellant on 28.02.2005. Feeling disdained by the ex-parte judgment and decree, the appellant laid an application under Order 9, Rule 13 read with Section 151 CPC for setting aside ex-parte decree in April 2009. Along with the application, prayer was also made for condonation of delay by way of filing separate application under Section 5 of the Limitation Act. In the application, it is interallia averred by the appellant that summons issued by the Court were not properly served on the appellant and he came to know about the ex-parte decree on receiving a notice dated 28.02.2009 under Order 21, Rule 41 CPC. It is also stated in the application that soon after receiving notice dated 20.02.2009, appellant made endeavor for obtaining requisite certified copies and immediately thereafter, the application has been filed. In the supporting application under Section 5 of the Limitation Act, almost identical averments are made for seeking condonation of delay.
(3.) The application for setting aside ex-parte judgment and decree was contested by the respondent and a detailed reply was submitted. The respondent-plaintiff also contested application for condonation of delay.;