The application filed for setting aside the decree was also rejected by the Additional Civil Judge, Allahabad on 04.05.1989.
Thereafter, the appellants herein filed a recall application under Order IX Rule 13 Code of Civil Procedure for short P.C. for setting aside the ex parte decree.
20,000/ to Rs.
In terms of the valuation of the suit, an appeal from the said order should have been preferred before the High Court wherein the pecuniary jurisdiction to file the said appeal lay at the relevant time.
The respondent herein filed suit number 508 of 1983 before the Additional Civil Judge, Allahabad against the appellants for the relief of declaration that she was also one of the owners and companysharers in the property companystituting a house numbering 172, Lookerganj, Allahabad and her name should also be shown as one of the purchasers of the said house in dispute in the sale deed alleged to have been executed in their favour by its earlier owner.
Although, the appellants herein filed a written statement, they failed to appear in the suit thereafter and, therefore, an ex parte decree was passed in favour of the respondent vide judgment and order dated 10.05.1988.
The suit was filed by the respondent herein in the Court of Additional Civil Judge, Allahabad for a declaration that she was a companysharer in the suit property to the extent of one half share in the same wherein she also sought for a direction that her name be entered in the agreement dated 01.07.1983 and sale deed dated 16.01.1984.
The appellants moved the said application under Section 5 read with Section 14 of the Limitation Act.
20,000/ and, therefore, the pecuniary jurisdiction to file the said appeal lay in the High Court and number in the District Court.
Against the said order, appellants filed Miscellaneous Case number 154 of 1989 in the wrong forum which, in fact, was also pointed out by the respondent herein in the objection filed on 01.07.1989.
Ignoring the said specific provision, an appeal was preferred before the District Court.
Case number 494 of 1991.
The companynsel appearing for the parties made their respective submissions and in support of their companytentions they also relied upon and referred to some of the documents on records.
In the order dated 28.02.2006 the High Court held that the order passed by the Additional District Judge was incorrect and unjustified as this was number a case for grant of indulgence under Section 14 of the Act as it companyld number have been said that the appellants herein acted in good faith or with due diligence in order to get the benefit of Section 14 of the Act.
The said application however after companysideration was rejected by the Additional Civil Judge, Allahabad vide order dated 04.05.1989.
At the time of hearing of the said appeal, it was pointed out in the objection filed by the respondent against the application under Section 5 read with Section 14 of the Act at a very early stage that such an appeal is number maintainable before the District Court as it lacked pecuniary jurisdiction to entertain the said appeal and, therefore, it would have been appropriate for the appellants to withdraw the appeal and file appropriate proceedings before the High Court.
At the time when the original suit was filed, the value of the suit was more than Rs.
The respondent herein filed an objection to the application filed by the appellants under Section 5 read with Section 14 of the Limitation Act companytending inter alia that the appellants herein did number act in good faith number had they acted with due care and attention so as to enable them to get the benefit of Section 14 of the Limitation Act and, therefore, the time spent by them in pursuing the matter in the wrong forum should number and cannot be companydoned.
Despite the aforesaid objections taken by the respondent, the Additional District Judge allowed the said application by the order dated 24.02.1992.
On the other hand, the respondent had argued that the appellants had knowledge of the suit which had been filed but failed to appear in the said suit and also failed to companytest the suit and, therefore, the same was decreed.
Aggrieved by the said order, the present appellants filed Miscellaneous Appeal number 154 of 1989 before the Additional District Judge, Allahabad which was allowed with the direction that the regular suit number 508 of 1983 be proceeded in accordance with law.
The plea taken by the appellants in the application under Section 5 read with Section 14 of the Act was that they had been wrongly advised by the senior companynsel that pecuniary jurisdiction of the High Court was that of the District Court and, therefore, the defendants abided by the advice given to them by the senior companynsel and pursued the matter in that forum until the same was decided.
The aforesaid companyclusions which have been arrived at by the High Court are relevant facts.
The same having number been done and having obtained an order in their favour which ex facie was illegal and without jurisdiction the appellants are number entitled to take the benefit of Section 5 read with Section 14 of the Limitation Act.
The aforesaid appeal filed was allowed and it was directed that the regular suit number 508 of 1983 be proceeded with in accordance with law which was tried and decided.
Since the aforesaid order was without jurisdiction as the District Court did number have pecuniary jurisdiction a writ petition was filed in the High Court by the respondent which was entertained.
The High Court, therefore, passed an order that it would be open to the defendant to move an application for companydonation of delay before the District Judge.
46,000/ and that the appeal was required to be filed before the High Court.
Therefore, aggrieved by the order dated 04.01.1991 passed by the District Court allowing the appeal, the respondent filed a writ petition which was registered as Writ Petition No.
It was pointed out clearly in the said objection at para 5 that the said District Court has numberpecuniary jurisdiction to entertain the appeal arising out of the original suit number 508 of 1983 being valued at Rs.
However, during the interregnum period and while the said petition was pending, the pecuniary jurisdiction of the District Court was increased from Rs.
Since during the pendency of the said writ petition in the High Court the pecuniary jurisdiction of the District Court was increased from Rs.
The recall application filed by the appellants under Order IX Rule 13 P.C. for setting aside the ex parte decree was rejected by the Additional Civil Judge on the ground that there was negligence and lack of due diligence on the part of the appellants in pursuing the matter and, therefore, they are number entitled to the relief of setting aside the ex parte decree.
9638 of 1991.
20,000/ to Rs.
5 lacs and, therefore, appropriately at the time of passing of the order, the jurisdiction was with the District Court.
In terms of the aforesaid order of the High Court, the appellants moved an application before the Additional District Judge, Allahabad under Section 5 read with Section 14 of the Limitation Act for short the Act and an appeal was registered as appeal number 494 of 1991.
Not only did the appellants ignore the said objection, but the Court while allowing the application filed by the appellants, also ignored the said fact which was specifically pleaded in the objection filed by the respondent.
Since the aforesaid order is challenged in the present appeal and since numberice was issued pursuant to which the respondent has also entered appearance, we heard the learned companynsel appearing for the parties at length.
The aforesaid suit was earlier companytested by the appellants herein but subsequently they failed to appear and companysequently an ex parte decree was passed in the said suit in favour of the respondent on 10.05.1988 by the Additional Civil Judge.
Dr. Mukundakam Sharma, J. Leave granted.
The question that falls for determination in this appeal is whether to uphold the impugned judgment and order passed by the High Court of Allahabad or to restore the order dated 24.02.1992 passed by the Additional District Judge, Allahabad.
By the impugned judgment and order dated 28.02.2006 the Allahabad High Court has set aside and quashed the order dated 24.02.1992 passed by the Additional District Judge, Allahabad in Misc.
The said judgment was passed by the District Court on 04.01.1991.
