JUDGMENT : BIBEK CHAUDHURI, J. 1. Decree holder/petitioner in Title Execution No.6 of 2013 has challenged the legality, validity and propriety of order No.20 dated 17.8.2016 passed by the learned Civil Judge (Senior Division), 1st court at Contai in the aforesaid title execution case. 2. For proper and better appreciation of the matter in issue, the following facts, in my opinion, are required to be recorded:- 3. The petitioner as plaintiff filed a suit for partition against the defendants/opposite parties in the 1st Court of the learned Civil Judge (Senior Division), Contai. The said suit was registered as Title Suit No.109 of 1995. The said suit was decreed ex-parte in preliminary form by a judgment and decree dated 7th January, 1998 declaring 1/4th share of the petitioner in the suit property. Subsequently, on the basis of the preliminary decree dated 7th January, 1998, final decree was drawn up by the learned court below on 31st May, 2013. The said final decree was put in execution. The said execution case was registered as Title Execution case No.6 of 2013. Commissioner was appointed for effecting partition by metes and bounds and on 29th June, 2016 the decree was executed. The commissioner submitted his execution report on 18th July, 2016. Thus, for all practical purposes, the said execution case was disposed of on full satisfaction and the petitioner got possession of his well demarcated share as per the commissioner's and court bailiff's report. 4. That on 12th July, 2016 the original defendant no.3 judgment debtor/opposite party no.1 filed two applications under Order 9 Rule 13 of the Code of Civil Procedure praying for setting aside the ex-parte preliminary as well as final judgment and decree dated 7th January, 1998 and 31st May, 2013 respectively along with an application under Section 5 of the Limitation Act. The said applications were registered in the learned court below as J. Misc. Case. No.20 of 2016 and J. Misc. Case. No.21 of 2016. 5. The record further shows that the opposite party filed an application under Section 151 of the Code of Civil Procedure before the learned Executing court praying for stay of all further proceeding of Title Execution Case No.6 of 2013, till the disposal of the applications under order 9 rule 13 of the Code of Civil Procedure being J. Misc. Case. No.20 of 2016 and J. Misc. Case. No.21 of 2016. 6. Case. No.20 of 2016 and J. Misc. Case. No.21 of 2016. 6. The learned Civil Judge (Senior Division), 1st court at Contai allowed the application for stay under Section 151 of the Code of Civil Procedure, staying Title Execution case No.6 of 2013 till the disposal of J. Misc. Case. No.20 of 2016 and J. Misc. Case. No.21 of 2016 by passing the impugned order dated 17th August, 2016. 7. Mr. Amit Baran Dash, learned advocate for the petitioner draws my attention to order No.2 dated 27th October, 1995 and order No.13 dated 21st May, 1997 passed by the learned trial judge in Title Suit No.109 of 1995, wherefrom it is ascertained that the learned court below accepted service of summons upon the defendants/opposite parties when the postal envelops continuing summons were returned with postal endorsement “refused”. Thereafter, the said suit was fixed for ex-parte hearing and by an order dated 7th January, 1998 the said suit was decreed ex-parte in preliminary form declaring 1/4th share of the plaintiff in respect of the suit property. Next, he invites my attention to order No.7 dated 3rd February, 2015 passed in Title Execution case No.6 of 2013 on perusal of which it is found that notice of the said execution case was also sent and served upon the opposite parties/judgment debtors, but they did not turn up to contest the aforesaid execution case. The learned executing court vide order dated 8th July, 2015 appointed commissioner to assist the bailiff to demarcate the decreetal property as per commissioner's report in the final decree of Title Suit No.109 of 1995 and for delivery of possession to the petitioner/decree holder. 8. It is further found from the documents annexed with the instant revision that the seal bailiff submitted his execution report in the executing court on 29th June, 2016 after delivery of peaceful possession of the decreetal landed property to the decree holder in the presence of the witnesses. The petitioner acknowledged delivery of possession of the decreetal property in writing on the same date. 9. After execution of the decree and delivery of decreetal property in favour of the decree holder, the opposite party No.1 entered appearance in the execution case on 11th July 2016. The petitioner acknowledged delivery of possession of the decreetal property in writing on the same date. 9. After execution of the decree and delivery of decreetal property in favour of the decree holder, the opposite party No.1 entered appearance in the execution case on 11th July 2016. On 13th July 2016 he filed a petition under Section 151 of the Code of Civil Procedure praying for stay of further proceeding of the execution case till the disposal of the J. Misc. Case. No.20 of 2016 and J. Misc. Case. No.21 of 2016 filed by him under order 9 Rule 13 of the Code of Civil Procedure for setting aside both ex-parte preliminary and final decree in favour of the petitioner. The learned executing court vide order dated 17th August, 2016 passed an order, the relevant portion of which is reproduced below. “From the informations filed by the Jdr. No.3 it reveals that the Misc. Cases being No.20/16 and 21/16 are pending. The instant case record reveals that indeed the decree holder has been delivered with the possession of the decreetal property. Now at this juncture the question which comes foremost in the mind of this Court i.e. whether stay of the proceedings of the instant execution case shall be prejudicial to the interest of the decree holder or not. From the record it is apparent that the decree holder has obtained the possession of the decreetal property, though full satisfaction has not yet been recorded in black and white, till date. The Jdr. by instituting two cases has sought to challenge the decree passed by this Court, both in preliminary form as well as the final form. His contentions are yet to be adjudicated. At this stage if the instant execution proceedings is stayed then I do not think the decree holder will suffer any loss. In such view of the matter, the instant application, merits to be allowed.” That the application dtd. 13.07.16 is allowed on contest without any order as to costs. Let the further proceedings of the instant execution case be stayed till disposal of the Misc. Cases being No.20/16 and 21/16.” 10. Ordinarily, in the presence of an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex-parte judgment and decree, it may not be appropriate to put the execution in further motion till the decision of the application. Cases being No.20/16 and 21/16.” 10. Ordinarily, in the presence of an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex-parte judgment and decree, it may not be appropriate to put the execution in further motion till the decision of the application. Taking cognizance of the normal legal position, the learned trial judge has passed the impugned order dated 17th August, 2016. However, it has lose sight of the learned court below that on the date of passing the said order there was indeed no application/applications under Order 9 Rule 13 of the Code of Civil Procedure pending before the learned court below in the eye of law. When an application is filed beyond the prescribed period of limitation along with application under Section 5 of the Limitation Act for condonation of delay in filing the main application, the main application (here in this case application under Order 9 Rule 13 of the Code of Civil Procedure) main application remains nonest till the delay in filing the main application is condoned. In the instant case the opposite party No.1, admittedly filed applications under Order 9 Rule 13 of the Code of Civil Procedure after the period of limitation. Delay in filing the applications for setting aside of ex-parte and final decree passed in Title Suit No.109 of 1995, not having been condoned, there had been no application under Order 9 Rule 13 of the Code of Civil Procedure. 11. Learned trial judge failed to consider the above aspect while granting an order of stay of further proceeding of Title Execution case No.6 of 2013. Practically the learned court below committed an apparent error in registering the applications under Order 9 Rule 13 of the Code of Civil Procedure as J. Misc Case No.20 of 2016 and J. Misc Case No.21 of 2016. 12. For the reasons stated herein above the instant revision is allowed. The impugned order dated 7th August, 2016 is set aside. There is, however, no order as to costs. Urgent Photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.