Alok Sharma, J. - (1.) THE miscellaneous appeal has been filed against the order dated 12 -5 -2009 passed by the Additional District Judge (Fast Track) No. 9, Jaipur City, Jaipur whereby the application filed by the appellants -defendants No. 1, 3 and 4 (hereinafter 'the defendants') under Order 9 Rule 13 CPC for setting aside the judgment and decree dated 25 -4 -2005 has been dismissed.
(2.) THE facts of the case are that the respondent -plaintiff Gadhiya (hereinafter 'the plaintiff') filed a suit for declaration and cancellation of sale deed dated 28 -3 -1971 against the defendants and one Jaipur Bhawan Nirman Sahakari Samiti a co -defendant, alleging that the sale deed dated 28 -3 -1971 executed by the defendants in favour of the Jaipur Bhawan Nirman Sahakari Samiti was null and void as also was the decree dated 6 -8 -1969. The plaintiff's suit was decreed on decree dated 6 -8 -1969. The plaintiffs suit was decreed on 25 -4 -2005 as none appeared subsequent to filing of the written statement by the defendants. The defendant Jaipur Bhawan Nirman Sahakari Samiti challenged the ex -parte decree dated 25 -4 -2005 by filing an application under Order 9 Rule 13 CPC, which was allowed on 10 -1 -2007 and the suit is now stated to be pending.
(3.) THE defendants also belatedly filed an application under Order 9 Rule 13 CPC on 23 -2 -2008 also challenging the Order 9 Rule 13 CPC on 23 -8 -2008 also challenging the judgment and decree 25 -4 -2005 on the ground that they were not aware of the plaintiff's suit nor notice of the suit served on them. However the learned trial court vide the impugned order dated 12 -5 -2009 dismissed the application filed by the defendants holding that the defendants had been served, engaged a lawyer, filed written statement and thereafter had been remiss in their defence leading to the ex -parte decree which could not be set aside under Order 9 Rule 13 CPC for lack of any legally sustainable grounds and being based on false facts contrary to the record and also for being beyond limitation for such application. Hence this appeal.;