Subhro Kamal Mukherjee, J.

Although the matter is appearing under the heading ‘application’, on the prayer of Mr. Mainak Bose, learned advocate appearing for the appellant, and Mr. Sabyasachi Bhattacharyya, learned advocate appearing for the respondent, the appeal itself is taken up for hearing upon dispensation of all formalities.

This is an appeal against order dated March 6, 2012 passed by the learned Civil Judge (Senior Division), Fifth Court, Alipore, in Miscellaneous Case No. 16 of 2011.

By the order impugned, the learned trial judge rejected an application filed by the defendant-appellant under Order IX, rule 13 read with Section 151 of the Code of Civil Procedure.

Undisputedly, the parties entered into an agreement for sale on December 16, 2007. The defendant agreed to convey the property-in-suit in favour of the plaintiff for Rs.12, 75,000/- (Rupees twelve lakh seventy five thousand) only. The defendant accepted Rs.7, 00,000/- (Rupees seven lakh) only towards earnest money/advance.

As the defendant did not execute the deed of sale in spite of repeated demands, the plaintiff approached the Court with a suit for specific performance of contract.

The suit was registered as Title Suit No. 1342 of 2008 before the learned Civil Judge (Senior Division), Fifth Court, Alipore.

In connection with the said suit, an application for temporary injunction was filed. The defendant contested the application for temporary injunction. Upon a contested hearing, by order dated May 30, 2008, the application for temporary injunction was allowed in favour of the plaintiff.

After the disposal of the application for temporary injunction, the defendant took no steps in the suit.

On September 11, 2008, the plaintiff filed his examination-in-chief on affidavit. He tendered certain documents. The documents were marked. The Court found that the agreement dated December 16, 2007 was prepared on insufficient stamp paper. Therefore, the said document was impounded and the said document was sent to the Collector for determination of the stamp duty. The Collector assessed the stamp duty and penalty. The plaintiff deposited the amount claimed. Thereafter, the agreement was marked as an exhibit.

The learned judge fixed June 30, 2010 for argument. On June 30, 2010, the learned judge, considering the materials on record, decreed the suit ex-parte.

On March 29, 2011, the defendant filed an application under Order IX, rule 13 read with Section 151 of the Code of Civil Procedure for setting aside of the said ex-parte decree. The application was accompanied by an application for condonation of delay in filing such application.

The proceeding was registered as Miscellaneous Case No. 16 of 2011 in the said Court.

Initially, the application for condonation of delay was rejected by the trial court. The defendant approached this Court with an appeal, which was tendered under F.M.A.T. No. 1341 of 2011. A Division Bench of this Court, by order dated December 5, 2011, although recorded that there were some faults on the part of the defendant in making such application, but allowed the said appeal subject, however, to payment of costs to Rs. 500/- (Rupees five hundred) only.

The cost was paid. Therefore, the application under Order IX, rule 13 of the Code of Civil Procedure was taken up for consideration by the trial court on merits.

The application under Order IX, rule 13 of the Code of Civil Procedure was filed alleging that the defendant engaged Mr. Arindam Das, a practicing advocate of Alipore Court, who did not take any step in the suit for reasons best known to him.

However, in the examination-in-chief on affidavit, the defendant disclosed the name of his learned advocate as Mr. Nibir Roy.

There is no explanation in the examination-in-chief as to how Mr. Arindam Das becomes Mr. Nibir Roy.

Rule 13 of Order IX of the Code of Civil Procedure provides for setting aside of an ex-parte decree passed against a defendant. Under the said provision, in an