A delay of 15 years in filing an application to set aside an ex parte decree cannot be condoned without a proper explanation.

Prasenjit Mandal, J.

1. THIS application is at the instance of the defendants and is directed against the order dated April 6, 2001 passed by the learned Additional District Judge, Tenth Court, Alipore in Misc. Appeal No.52 of 1999 thereby rejecting the misc. appeal and confirming the judgment and order passed by the learned Trial Judge in Misc. Case No.45 of 1987 arising out of the Title Suit No.94 of 1967.

2. THE opposite party/plaintiff filed a title suit being Title Suit No.94 of 1967 for declaration and other reliefs. In that suit, the defendants appeared and they were contesting the said suit by filing a written statement. Accordingly, issues were framed. But, at the time of peremptory hearing of the suit, the defendants did not appear and for that reason, the said title suit was decreed ex parte on September 9, 1971. Thereafter the defendants filed an application under Order 9 Rule 13 of the Code of Civil Procedure, which was registered as Misc. Case No.42 of 1971. That misc. case was dismissed for default on December 16, 1972. For that reason, the defendants filed another misc. case being Misc. Case No.45 of 1987 on August 11, 1987, i.e., after lapse of about 15 years from the date of dismissal of the earlier misc. case along with an application under Section 5 of the Limitation Act for setting aside the order of dismissal of the Misc. Case No.42 of 1971. The Misc. Case No.45 of 1987 was dismissed on contest along with the application under Section 5 of the Limitation Act by the learned Trial Judge, i.e., the learned Civil Judge (Senior Division), Sixth Court, Alipore. Thereafter, the defendants preferred a Misc. Appeal No.52 of 1999 against the order of dismissal of the misc. case. That misc. appeal too was also dismissed on contest on April 6, 2001. Being aggrieved by the order of dismissal of the misc. appeal, this application has been preferred.

Now the point for consideration is whether the impugned order should be sustained. Upon hearing the learned counsel for the parties and on going through the record, I find that admittedly, the plaintiff / opposite party filed the title suit being Title Suit No.94 of 1967 for declaration and other reliefs. Admittedly, the petitioners entered appearance in the suit and filed a written statement.

3. ADMITTEDLY, issues were framed in the suit. Admittedly, the petitioners did not appear at the time of call of the suit on September 9, 1971. As a result, the suit was decreed ex parte against the defendants. Admittedly, the defendants/petitioners preferred the Misc. Case No.42 of 1971 under Order 9 Rule 13 of the C.P.C. but that misc. case was dismissed for default on December 16, 1972. Since then, the petitioners remained silent for a consideration period of about 15 years and then only on August 11, 1987, they filed a misc. case being Misc. Case No.45 of 1987 under Order 9 Rule 9 of the C.P.C. for setting aside the order of dismissal for default of the misc. case on December 16, 1972.

4. THE learned Trial Judge was to consider whether the petitioners had sufficient cause for non-appearance at the time of dismissal of the misc. case on December 16, 1972.

In order to prove the sufficient cause on December 16, 1972, the petitioners have examined as many as 7 witnesses and exhibited a number of documents. The defendant no.1 herself, her son, another defendant, the Advocate on record and doctors, are the witnesses amongst the persons examined in support of their contention of sufficient cause for non-appearance on December 16, 1972. The learned Trial Judge has analysed the evidence on record in details and has come to a finding that the petitioners have hopelessly failed to prove that the defendant no.1, namely, Satyabati Ghose, was ill at the material time. The learned Trial Judge has also held that the petitioners have failed to prove that the Advocate of the defendant no.1 did not inform about the case to the defendant no.1. Thus, the learned Trial Judge has concluded that t