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2011 DIGILAW 463 (ORI)

Ratha Sethy v. Babaji Sethy

2011-08-30

S.K.MISHRA

body2011
ORDER 1. Heard Learned Counsel for the parties. 2. In this Writ Petition, the Petitioners assail the Order Dated 23.11.2010 passed by the District Judge, Keonjhar, in FAO No. 14/2009 refusing to interfere with the order passed by the Civil Judge (Sr. Division), Anandapur, in C.M.A. No 31/2008 (arising out of T.S. No. 79/2001) wherein the application under Order IX, Rule 13 of the Code of Civil Procedure, 1908 was rejected. 3. The facts are not in dispute. T.S. No. 79/2001 was decreed ex parte on 7.5.2004. Thereafter, the Plaintiff filed an application for final decree. When the final decree was pending for disposal, in the year 2008 the predecessor in interest of the present Petitioners, i.e. one Bakati Sethy filed an application for setting aside the ex parte decree. It is contended by the Opp. Party that Bakati Sethy had appeared in the final decree proceeding on 22.3.2005 upon receiving notice and took several adjournments to file her objection. Ultimately her petition was rejected and writ was issued to the Civil Court commissioner to allot the share per the preliminary decree. The preliminary decree was made final on the basis of the report received. 4. Learned trial Judge after taking into consideration the evidence led on behalf of both the sides held that though the said Bakati Sethy was ill on the date the case was taken up for hearing, he came to the conclusion that there is no sufficient ground to condone the delay occasioned in filing the Miscellaneous Application as there is ample evidence on record to show that she had received notice in the final decree proceeding on 10.3.2003 and she engaged Sara Babu and Chakra Babu on 29.4.2005 for filing objection. The petition for setting aside the ex parte decree was filed on 10.7.2008. Therefore, it is apparent that the petition for setting aside ex parte decree was filed much after the expiry of the period of limitation from the date of knowledge of the predecessor in interest of the present Petitioners. 5. This matter was carried in appear to the District Judge, Keonjhar, wherein the Learned District Judge held that the final decree has been sealed and signed on 20.8.2009. 5. This matter was carried in appear to the District Judge, Keonjhar, wherein the Learned District Judge held that the final decree has been sealed and signed on 20.8.2009. The Learned district Judge has further held that the appeal was preferred on 31.8.2009 and by the time the appeal has been preferred the final decree has been sealed and signed and therefore the appeal has become infructuous and hence he went on to dismiss the appeal. 6. In course of hearing, Learned Counsel for the Petitioners raised two important points. Firstly, the application under Order IX, Rule 13 of the Code is maintainable even after completion of the final decree and the order passed by the District Judge is erroneous on that score and secondly there is sufficient reason for condonation of delay in filing the application under Order IX, Rule 13 of the Code and hence the factual findings of the Learned trial Judge is erroneous. 7. Learned Counsel for the Opp. Party, on the other hand, vehemently opposed the petition only on the ground that since the predecessor in interest, who was set ex parte and ex parte decree was passed against her on 21.6.2004, had received notice of the final decree proceeding which means that she has knowledge of the ex parte Judgment and no explanation is forthcoming from here side why such delay has been caused. Hence it is urged that the orders passed by the Learned Trial Judge and the Appellate Judge are correct. 8. In the case of Satya Dev Thakur v. Vth Addl. District Judge, Varanasi & Ors., 2002 All L.J. 2017, the Allahabad High Court relying upon a decision of this Court in the case of Anirudha Adhikari v. Amarendra Adhikari AIR 1988 Orissa 42 has held that the Trial Court is competent to entertain the application to set aside ex parte preliminary decree before the final decree is passed. 9. In Anirudha Adhikari's case (supra) this Court has held that in a partition suit the proceedings in the Trial Court does not come to an end on passing of a preliminary decree. The suit continues till the passing of a final decree in the case and till then the Trial Court continues to be in seisin of the matter relating to the subject matter of the suit, therefore, has the jurisdiction to entertain application of appointment of receiver. 10. The suit continues till the passing of a final decree in the case and till then the Trial Court continues to be in seisin of the matter relating to the subject matter of the suit, therefore, has the jurisdiction to entertain application of appointment of receiver. 10. In the present case, the application for restoration of the ex parte decree was filed on 5.7.2008 and the final decree was passed on 20.8.2009. While the final decree was passed, the application for setting aside the ex parte preliminary decree was pending. In such situation, it is perfectly within the jurisdiction of the Court to entertain the application to set aside the ex parte preliminary decree, on the Petitioner's showing sufficient cause which prevented them to appear before the Trial Court for which the suit was decreed ex parte. 11. The next point is regarding the factual aspect of the case. The factual aspect has been discussed at length by the Learned Civil Judge (Sr. Division) which is not disturbed by the Learned District Judge. This Court also finds that though the ex parte decree was passed on 21.6.2004 and the Petitioners predecessor in interest, i.e. Bakati Sethy, received notice of the final decree on 10.3.2003 and also received notice from the Civil Court commissioner, it is well within her knowledge than an ex parte decree was passed against her. Thus, the limitation should start from that date. No explanation is forthcoming to explain the delay between the date she received notice and the date on which the petition for setting aside the application was filed. 12. This Court is of the opinion that the Trial Court was right in rejecting the application for setting aside the ex parte decree as there is no sufficient reason to condone the delay that has occasioned in filing the application for setting aside the ex parte decree. However, it is made clear that this Court does not agree with the proposition of law resorted to by the Learned District Judge. With the aforesaid observation, the Writ Petition is dismissed. Writ Petition dismissed.