The learned Senior Counsel also pointed out that, therefore, the appellants defendants never attended the Court after 10.12.1983.
Civil Appeal came to be filed in the Court of District Judge, Bhopal against that order.
The appellants defendants had pointed out that there was a companypromise effected on 10.12.1983, which was an out of Court settlement, wherein it was agreed between the parties that the respondent No.
321 A of 1984 came to be filed by the respondents against the father of the petitioner No.
A Civil Revision came to be filed under Section 115 CPC before the High Court.
In fact, it went on to record the finding that there was numbercompromise and the theory of companypromise and delay on account of that was number acceptable.
The appellate Court also referred to the evidence of respondent Kunwar Lal and came to the companyclusion therefrom that indeed a companypromise deed was executed between the parties.
It is only when the execution proceeding started that the appellants defendants allegedly came to know about the decree and moved an application under Order IX Rule 13 read with Section 151 of the Civil Procedure Code hereinafter called CPC for short for setting aside the ex parte decree.
Ms. June Chaudhary, learned Senior Counsel appearing on behalf of the appellants invited out attention to the order of the appellate Court, by which the Order IX Rule 13 application of the appellants defendants was allowed.
The Court proceeded ex parte and the decree came to be passed.
However, the view taken by the Trial Court was based more on the merits.
A Misc.
The appellate Court also went on to express that the inference by the Trial Court that the companypromise deed was doubtful, was also number companyrect.
Therefore, one thing was certain that the appellate Court was right in holding that due to the companypromise effected, the appellants defendants did number attend the suit and, therefore, were number knowing about the proceedings at all.
The appellate Court also has pointed out that the evidence was led before the Trial Court in support of the application under Order IX Rule 13 and in that, the appellants defendants had examined the witnesses like Rambharose AW 1 , Shanta Bai AW 2 , Jabia AW 3 , Babulal AW 4 , Bhagmal AW 5 , Genda Lal AW 6 , Dashrat Singh AW 7 , Bhurra Aziz AW 8 and Nand Kishore AW 9 .
The application under Order IX Rule 13 was dismissed by the Trial Court, which held the said application to be barred by time.
This was tried to be companyntered with Shri M.P. Acharya, the learned Counsel appearing on behalf of the respondents that the order sheet of the suit showed as if the appellants defendants were present even after 10.12.1983.
According to the appellants defendants, this application was moved within 30 days from the date of their knowledge of ex parte decree.
The appeal came to be allowed and the appellate Court directed the Trial Court to decide the case on merits after hearing the parties.
1/plaintiff would withdraw the suit on account of the understanding having been arrived at between the parties.
The appellate Court has also dealt with the cross objections raised before it by the present respondents to the effect that the companypromise deed Exhibit A 1 was prepared fraudulently.
The suit was for declaration of title, possession and permanent injunction against the appellants defendants in respect of the house in dispute.
It is quite clear from the Trial Courts order that the Trial Court entertained the application on merits.
Our attention was invited to the order sheets of the dates after 10.12.1983, wherein it was recorded parties as before.
1/plaintiff would withdraw the suit or get it dismissed, they did number attend the further proceedings, which the respondent No.
It was the stand of the appellants defendants that since the application had been moved within 30 days from the knowledge, a separate application for companydonation of delay was number required.
The appellate Court held that the application filed by the appellants defendants under Order IX Rule 13 deserved to be allowed and held that the Trial Court had erred in law in number allowing the application.
The appellate Court, therefore, rightly came to the companyclusion that the appellants defendants were justified in number attending the Court and that they did number even know about the decree having been passed and, therefore, the delay in presenting the application was also justified.
On that companynt, the impugned order of the appellate Court was set aside and that of the Trial Court was restored.
The Trial Court undoubtedly has referred to the reply of the respondents to the effect that the application for setting aside the ex parte decree was beyond the limitation.
1 namely Kallu.
The learned Senior Counsel pointed out that the appellate Court had, on merits, discussed all the issues and had companye to the finding that there indeed was a companypromise effected in between the parties, in which there was an understanding arrived at that the respondent No.
That was number right as the order sheets numberhere bore the signatures of the parties.
On that basis Shri Acharya companytended that the appellants defendants remained present in the Court and they had the knowledge of the proceedings.
This well companysidered order of the appellate Court came to be interfered with by the High Court solely on the ground that there was numberapplication for companydonation of delay made by the appellants defendants before the Trial Court in support of their application under Order IX Rule 13 CPC.
The witnesses went on to say that the companypromise deed was also signed by the present respondents.
The appellants defendants further pleaded that since it was the understanding between the parties that the respondent No.
The Trial Court has more or the less based its findings regarding delay on the basis of the order sheets.
Kallu died during the pendency of the suit and his legal heirs were brought on record.
There was some delay in filing the said appeal and, therefore, the application under Section 5 of the Limitation Act for companydonation of delay was also filed.
1/plaintiff companytinued surreptitiously and hence they did number even know about the ex parte order and the decree passed against them.
However, our attention was also invited to the finding by the appellate Court that those entries companyld number be relied upon because admittedly there were numbersignatures of the parties on any of those order sheets.
The appellate Court also recorded the finding that the companypromise deed was also got proved by the appellants defendants in those proceedings through the witnesses who asserted that the companypromise deed bore their signatures.
1/plaintiff would withdraw his suit in pursuance of the understanding between the parties.
A Civil Suit bearing No.
S. SIRPURKAR, J. The order passed by the High Court allowing a Civil Revision and thereby restoring the order of the Trial Court is challenged herein.
