- (1.) This appeal has been filed under Order 43 rule 1(d), Civil Procedure Code against the order of the learned District Judge, Sri Ganganagar dated October 1, 1993 dismissing the application of the defendant-Appellant moved under Order 9, Rule 13, Civil Procedure Code the facts of the case giving rise to This appeal may be summarised thus.
(2.) Suit No. 2 of 1979 was filed by the plaintiff-Respondent against the defendant-Appellant for the recovery of about Rs. 17,000/-, summons for settlement of issues were issued for July 28, 1979, despite service of the summons, the defendants did not put their appearance and the case proceeded ex pane against them. Ex parte decree was passed on August 28, 1980. Execution application was moved. They learnt about the ex parte decree when the Notice of the execution proceedings was received by them. Thereafter they moved an application under Order 9, Rule 13, Civil Procedure Code for setting aside the ex parte decree. It was seriously opposed by the plaintiff-Respondent. After hearing the learned Counsel for the parties, the learned District Judge dismissed it by his order under challenge.
(3.) It has been contended by the learned counsel for the defendant-Appellants that the learned DIstrict Judge, Sri Ganganagar seriously erred to hold that the application moved under Order 9, Rule 13, Civil Procedure Code is time-barred and to dismiss it. He also contended that the defendants could not put their appearance on account of the fault of their Counsel Shri Jagdish Rai Gupta, Advocate, Sri Ganganagar and the District Judge did not take into consideration that no litigant should suffer on account of the fault or mIstake on the part of his Advocate. He further contended that July 13, 1979 was fixed for filing written statement, it was the first date of hearing and, no order was passed to proceed the case ex parte and on This ground also the ex parte decree deserves to be set aside. He lastly contended that the learned District Judge also did not take into consideration that the execution application itself was moved after seven years of the passing of the ex parte decree. He relied uponSavithri Amma Seethamma v. Aratha Karthy and Ors., 1983 AIR(SC) 318.;