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Madhya Pradesh High Court · body

2000 DIGILAW 1241 (MP)

Banwarilal v. Narayan Singh

2000-11-23

R.B.DIXIT

body2000
Heard the learned counsel of the appellant and learned counsel of the respondent No. 1. The only question involved in the present appeal is about starting point of limitation in filing an application under Order 9 Rule 13 C.P.C. The learned trial Court has rejected the application of the appellant on the ground that the limitation shall start from the date when the suit was dismissed against him. The learned counsel of the appellant has submitted that he being the defendant. the dismissal of suit will not amount to ex-parte decree. This point has already set at rest by order dated 8.5.1997 passed in Civil Revision No. 1019/96 of this Court. Since the ex-parte decree was passed by the Appellate Court on 23.7.1996. the limitation shall start on the date of decree passed by the Appellate Court. Learned counsel of the respondent has argued that even counting the limitation from this date the application was not filed within a month and the delay of two months was not properly explained. However. this legal point was not raised before the trial Court in the reply of the application and cannot be raised in this appeal first time before the High Court. The learned counsel of the appellant has submitted that by bonafide mistake the application filed before the trial Court and in revision No. 1916/96 by order dated 14.10.1996 this Court dismissed the revision on the ground that the petitioner ought to have moved the Court where the effective decree was passed. Then the application was filed before the First Appellate Court. In my opinion. the delay of two months has been properly explained though the point was not raised before the trial Court. There being sufficient reason for setting aside the ex-parte decree passed by the Appellate Court. The appeal is, therefore, allowed and the impugned order is set aside. Ex- parte decree passed against the appellant is also set aside. The learned trial Court shall proceed with the case according to law and the parties are directed to appear before the trial Court on 11th December. 2000.