R.C. Gandhi, J. - (1.) This appeal has been preferred against the order dated 22.10.2005 passed by the District Judge, Jaipur District, Jaipur whereby the Civil Misc. Application No. 41/95 presented under Order 9 Rule 13 read with section 151 of the Code of Civil Procedure for setting aside ex parte decree passed in Civil Suit No. 171/1990 has been dismissed.
(2.) A suit for specific performance was filed by respondent No. 1, plaintiff before the trial court i.e. District Judge, Jaipur. Originally, there were five respondents in the suit that is respondents Nos. 2 to 6 herein and 1 to 5 in the suit. The respondents were notified, despite service, they did not appear before the trial court and were proceeded ex-parte. In an application under Order 39 Rule 1 and 2 CPC, the trial court passed interim direction not to sell the disputed property despite that the respondents-defendants Nos. 6 to 8 purchased the property. Consequently, they were arrayed as party respondents in the suit as respondents No. 6, 7 and 8. They were served. They appeared through their counsel and sought time to file written statements, despite that written statements were not filed. On 12.8.1994, none appeared for the respondents. On 22.8.1994, counsel for the respondents appeared and pleaded no instructions. The Court passed the order that 'Counsel for the respondents is present, counsel for the appellant is also present, respondents Nos. 6 to 8 are not present. They have not filed the written statement. They are proceeded ex parte. The trial court relying upon the statement of witnesses proceeded exparte to pass the exparte decree on 25.1.95.
(3.) An application under Order 9 Rule 13 CPC was presented on 12.5.1995 stating therein that the defendants appellants herein had no knowledge of the ex parte proceedings and ex pane decree. They were told by their counsel in the month of April, 1995 that the next date in the suit is fixed on 10.5.1995 and their Advocate also instructed them that they need not to come to the court as he will act and appear before the court on their behalf. The appellants moved an application also for permission of the court to lead evidence to make out sufficient cause but later on it was withdrawn. The trial court after hearing learned counsel for the parties and on appreciation of the material before it, dismissed the application filed under Order 9 Rule 13 CPC vide impugned order. Learned counsel for the appellants also filed an application under section 5 of the Limitation Act seeking condonation of delay of 107 days showing sufficient cause which prevented them to approach the court.;