Final Order 2

Order Details: COPY OF ORDER
Pdf Text: MISC DJ 27/25
RAJ KUMAR Vs. OM PRAKASH GIRI
28.03.2025
Present: Ld. Counsel for applicant with applicants.
Ld. Counsel for non-applicant with non-applicant.
1. Trial Court Record of CS 356/11 received.
2. Counsel for non-applicants waives his right to file reply to the
applications moved by applicants namely U/O IX Rule 13 CPC
(seeking setting aside of ex-parte judgment and decree dated
21.08.2012); under Section 151 CPC (seeking exemption to file
certified copy of the aforesaid judgment); U/S 151 CPC
(seeking condonation of delay in filing of application U/O IX
Rule 13 CPC); and seeking stay of the Execution proceedings
U/S 151 CPC (which are pending separately as execution No.
33/24 against the aforesaid judgment and decree).
3. The applicants herein are D-3 and D-4 in the original suit
bearing No. 356/11 which was decreed vide judgment and
decree dated 21.08.2012. Now, the aforesaid application has
been moved by the said defendants. As far as the application for
seeking exemption from filing certified copies is concerned, the
same is disposed off as the TCR has been received from Record
Room.
4. Again, the application for stay is also disposed off as the main
application U/O IX Rule 13 CPC is being decided by this order.
5. This brings me to the application seeking condonation of delay
in filing of the application U/O IX Rule 13 CPC alongwith the
main application U/O IX Rule 13 CPC.
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6. Both the applications are premised on the same contention of
the applicants. They claim that they were never served with the
summons of the main suit No. 356/11 and thus, they were never
aware about the pendency of the said suit or passing of a decree
against them. It is their case that only after process in execution
petition No. 33/24 was served on them (though they do not
specify the date of said service), they became aware about ex-
parte decree and hence approached this Court.
7. Counsel for the applicants argued that his clients were never
served with the summons of the suit and hence the ex-parte
decree should be set aside.
8. On the other hand, Counsel for the non-applicant/plaintiff
argues that the said submission made by the applicants is
evidently false in as much as a bare perusal of the trial court
record would show that not only summons were served on all
the defendants (including the applicants) they even filed a joint
vakalatnama before the Trial Court on 09.11.2010 (with the suit
filed on 16.10.2010) and thereafter they even filed a joint
written statement before the Trial Court. Thus, it is argued that
the present application seeking condonation of delay or
application seeking setting aside of decree is not only beyond
time but also is an abuse of the process of law. He thus, prays
for dismissal of both the applications.
9. As far as the application for condonation of delay is concerned,
applicants themselves claim that they became aware about the
present decree in month of November 2024. Despite specific
query of this Court, no date is offered as the date of service by
Counsel for applicants. Now, even for the sake of argument, if it
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is assumed that the applicants were served and they became
about the execution proceedings and thus, the ex-parte decree
on 30.11.2024, the limitation to file an application U/O IX Rule
13 CPC began to run from the said date and expired on
30.12.2024. The Courts re-opened on 03.01.2025 and thus the
last date (as per the applicants own stand) was 03.01.2025. The
present applications have been filed on 15.01.2025 and no
explanation is given as to why the application seeking setting
aside of ex-parte decree was not filed within the time provided
in law.
10.I may reiterate, even at the cost of repetition that the above is a
fact arrived at if I consider the averments made in the
application on their face value.
11.But, the trial Court record shows that the averments made in the
present applications are false and aimed at delaying execution.
A bare perusal of the trial court record shows that all the
defendants (including the applicants namely Jagdish and
Surender Pal) were served with the summons of the suit
through one of the defendants namely Shiv Kumar (who is also
the real brother of the applicants) on 30.10.2010. This service
was through ordinary modes.
12.Thereafter, a joint signed vakalatnama was filed on behalf of all
the defendants on 09.11.2010 and a counsel appeared for the
defendants on 10.11.2010. Thereafter, all the defendants
through their authorised attorney filed a joint written statement
in Court on 02.12.2010. The written attorney in favour of one
Praveen Kumar Jain (with applicants herein also being
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signatory to the said attorney dated 11.08.2010) is also on
record.
13.It is thereafter that the defendants stopped appearing before the
Ld. Trial Court and eventually they were all proceeded ex-parte
vide order dated 19.03.2011. This eventually led to the passing
of ex-parte judgment and decree dated 21.08.2012 against the
defendants including the applicants herein.
14.The bare perusal of the aforesaid facts show that the applicants
herein have stated false facts in their applications seeking
condonation of delay as well as in their application seeking
setting aside of ex-parte judgment and decree.
15.At this stage, Counsel for applicants argued that the GPA dated
11.08.2010 and the vakalatnama available on the trial court
record filed on 09.11.2010 does not bear signatures of his
clients. He further submitted that there is no actual service on
the applicants as per trial court record.
16.I am not inclined to accept the said submissions made on behalf
of the applicants. This is because nowhere in the present
applications, applicants have stated that the GPA dated
11.08.2010 or the vakalatnama filed before the Trial Court was
filed by forging their signatures. They simply claim that they
were never served with the summons of the suit which in fact is
incorrect. They do not dispute the fact that they were residing at
the address on which the summons were sent at the relevant
point of time or that Shiv Kumar is their real brother or that
they were not at talking terms with him at that time. It is not
their case that they have initiated any proceeding till date
against the Counsel who filed vakalatnma on their behalf before
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the Trial Court or against the brother Shiv Kumar or against the
attorney who filed a joint written statement on their behalf on
the strength of the said attorney.
17.I am told that Shiv Kumar has since expired. Even if Shiv
Kumar has expired, this does not explain that why the
applicants are silent about the alleged forgery in their
applications filed before this Court or why they had not initiated
any action against the other two individuals i.e. the concerned
lawyer and/or the attorney.
18.The decree in this case is more than a decade old and it appears
that only to avoid execution, they have come with a plea of non-
service of summons. In my humble opinion, no ground is made
out to condone the delay in filing of application U/O IX Rule 13
CPC as the applicants herein were aware of the Court
proceedings and they themselves suffered an ex-parte decree by
opting not to appear before the concerned Court since
19.03.2011 (the date when the defendants were proceeded ex-
parte in the main suit). Even on merits, application U/O IX Rule
13 CPC cannot be allowed.
19.Accordingly, both the applications under consideration are
dismissed with cost of Rs. 20,000/- each to be paid to the non-
applicant/plaintiff.
20.File be consigned to Record Room.
21.Let Trial Court Record be sent back.
Aashish Gupta
DJ-01/NE/KKD/DELHI
28.03.2025
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