Banwari Lal Sharma, J. - (1.) DESPITE service nobody appeared on behalf respondents to oppose this petition. Bhawani Singh and Ramvati have preferred this writ petition under Article 226 and 227 of the Constitution of India against the order dated 23.05.2013 (Annexure -8) passed in Civil Misc. Case No. 126/2011 by the learned Civil Judge (Junior Division) and Judicial Magistrate, First Class, Dholpur whereby the application filed by the petitioner under order 22 Rule 3 read with Rule 9 CPC was dismissed.
(2.) THE brief facts of the writ petition are that the respondents filed a suit for permanent injunction and for setting aside the order Dt. 26th June, 1971 against Shri Bhero (father of the petitioner and proforma -respondent No. 10) and his brother Shri Rameshwar (proforma -respondents No. 8). In the above suit summons were never served and ex -parte judgment & decree was passed on 1st August, 2011. Mr. Bhero and Mr. Rameshwar, defendants filed an application for setting aside ex -parte judgment and decree under Order 9 Rule 13 CPC on 11.10.2011 along with an application under Section 5 of the Indian Limitation Act. During pendency of the application under order 9 Rule 13 CPC applicant/defendant Mr. Bhero expired on 25.08.2012 and the legal representatives could not file an application for impleading them as Legal Representatives of the defendant Mr. Bhero in time. On 1.8.2012 petitioners and the proforma -respondent No. 10 filed an application under Order 22 Rule 3 read with Rule 9 CPC along with an application for condonation of delay under Section 5 of the Limitation Act for impleading them as legal representatives of deceased applicant/defendant Mr. Bhero with prayer of setting aside the abatement.
(3.) RESPONDENT Nos. 1 to 6 contested the above application on the ground of delay and after hearing learned trial court dismissed the application vide impugned order Dt. 23rd May, 2013 (Annexure -8) without considering the Limitation prescribed in Article 121 of Limitation Act 1963.;