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Madhya Pradesh High Court · body

2020 DIGILAW 416 (MP)

Ishwarlal v. Central Bank of India

2020-03-13

VANDANA KASREKAR

body2020
JUDGMENT : Vandana Kasrekar, J. 1. By the present appeal, the appellants are challenging the order dated 17.5.2018 passed by first Additional District Judge Mandsaur in M.A. No. 7/2013 whereby the lower court has dismissed the applications filed by the appellants under Order 9 Rule 9 r/w. Section 151 of the CPC and under Section 5 of the Limitation Act. 2. The respondent No. 1 has filed a recovery suit against the respondent Nos. 2 to 4, which was registered as Civil Suit No. 46-B/94 before the Second Additional District Judge, Mandsaur and the said suit was decreed vide judgment dated 17.5.1996. Thereafter the decree holder i.e. the respondent No. 1 filed an execution petition against the respondent Nos. 2 to 4. In the execution proceedings land of survey No. 14/1 total area of 0.198 Hectare and survey No. 13 area 0.042 hectare total are 0.240 hectare situated at village Kityani, Tehsil and District-Mandsaur was attached. Since the present appellant has already purchased the said land by registered sale deed dated 27.4.1991 from one Smt. Kalpanadevi Baser and has also got their name mutated in the said land records. The appellants were in possession of the said land since 1991. That, when the appellants came to know about the attachment of their aforesaid land, they have filed an objection before the executing court under Order 21 Rule 58 of the CPC which was registered as Case No. 24/2007. The appellants appointed the respondent No. 5 as Advocate for filing of objection and conducting the case on behalf of the appellants. The objection filed by the appellants was dismissed in default vide order dated 31.3.2008. The respondent No. 5 did not intimate the present appellants regarding dismissal of the objection in default and also suppressed the fact that the respondent No. 5 himself participated in the auction purchase of the said land. The appellants thereafter filed an application under Order 9 Rule 9 of the CPC for setting aside the order of dismissal in default before the First Additional District Judge, Mandsaur. The lower court vide impugned order dated 17.5.2018 has dismissed the application for condonation of delay as well as the application for setting aside the dismissal. Being aggrieved by the said order the appellants have filed the present appeal. 3. The lower court vide impugned order dated 17.5.2018 has dismissed the application for condonation of delay as well as the application for setting aside the dismissal. Being aggrieved by the said order the appellants have filed the present appeal. 3. Learned counsel for the appellants submits that the court below has committed error in dismissing the application under Section 5 of the Limitation Act as well as the application under Order 9 Rule 9 of the CPC filed by the appellants. He submits that there were sufficient grounds with the appellants for condoning the delay in filing this application. He submits that the counsel has not informed the appellants regarding the dismissal of the objection in default. In such circumstances, he prays that the impugned order be set aside. 4. Learned counsel for the respondents submits that the order passed by the court below is just and proper and it does not call for any interference. 5. Heard the learned counsel for the parties and also perused the impugned order. 6. The application submitted by the appellants was dismissed in default on 31.3.2018 and the application under Order 9 Rule 9 of the CPC was filed after a period of three and a half years. Learned counsel for the appellants submits that the application was dismissed due to fraud committed by the respondent No. 5. They have appointed the respondent No. 5 as their counsel for filing the said application, however, the counsel has not informed the appellants regarding the dismissal of the objection and he has himself participated in the auction proceedings. In the present case this submissions cannot be accepted. 7. In the present case, the appellants got knowledge about the order dated 31.3.2008 at 5.10 p.m. Thereafter an application under Order 21 Rule 89 and 90 of the CPC has been filed on 10.5.2010, which was dismissed on 27.7.2010 which was challenged before this Court and the same was dismissed on 3.2.2012 by this Court directing the appellants to file an appeal in accordance with law. Thus, it cannot be said that the appellants had no knowledge about the order by which the application under Order 21 Rule 58 CPC has been dismissed. 8. Thus, in the light of the aforesaid finding, the court below has rejected the application filed by the appellants under Order 9 Rule 9 of the CPC. Thus, it cannot be said that the appellants had no knowledge about the order by which the application under Order 21 Rule 58 CPC has been dismissed. 8. Thus, in the light of the aforesaid finding, the court below has rejected the application filed by the appellants under Order 9 Rule 9 of the CPC. Therefore, the finding arrived at by the court below is just and proper and it does not call for any interference. Accordingly the present appeal is dismissed as such. Arguments heard. Reserved for orders.