The main legal point established in the judgment is that the application to set aside an ex parte judgment and decree is not barred by time if filed within the statutory period, even if no separate application to condone the delay is filed.

1. Feeling aggrieved by the order dated 14.5.2010 passed by learned Third Additional District Judge, Bhopal in MJC No.35/2007 whereby the application under Order 9 rule 13 CPC filed on behalf of the appellants has been dismissed, this appeal has been filed under Order 43 rule 1 (d) of CPC.

2. An ex parte judgment and decree decreeing the suit of specific performance of contract and mandatory injunction was passed by learned trial Court on 14.2.2007. An application to set aside the ex parte judgment and decree was filed by the defendants-appellants on 9.4.2007. The said application has been rejected by the impugned order.

3. On bare perusal of the record of the Court below, it is gathered that defendants filed an application to obtain certified copy of the judgment and decree passed in Civil Suit 473-A/2006 on 7.3.2007 and it was delivered to the appellants on 6.4.2007. 7th-8th April, 2007 being holidays Saturday-Sunday, the application to set aside the ex parte judgment and decree was filed on 9.4.2007.

4. The contention of Shri Dubey, learned counsel for the appellants is that although learned Court below found that sufficient cause has been made out by the appellants to set aside the ex parte judgment and decree but since the application is barred by time as no application to condone the delay has been filed, therefore, the application has been rejected on the ground of limitation. Learned counsel submits that indeed looking to the facts and circumstances of the case there is no delay in filing the application under Order 9 rule 13 CPC and, therefore, by allowing this appeal the impugned order be set aside and the application filed under Order 9 rule 13 CPC be allowed.

5. On the other hand Shri James Anthony, learned counsel appearing for the respondent argued in support of the impugned judgment.

6. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed.

7. On bare perusal of the impugned order, it is gathered that learned Court below in para 9 has categorically held that because appellant-defendant No.1 was discharging his official duties since he was directed to conduct pre-Board Examination of 8th Class and defendant No.2 (appellant No.2) being a house wife, sufficient ground has been made out of their non-appearance. But, the application has been rejected on the ground of limitation because no application to condone the delay has been filed.

8. Indeed, the ex parte judgment and decree was passed on 14.2.2007 and within time necessary application to obtain certified copy of the ex parte judgment and decree was filed by the appellants on 7.3.2007. The certified copy of the ex parte judgment and decree was received by the appellants on 6.4.2007 since these dates are appearing in the certified copy of the ex parte judgment and decree filed along with the application under Order 9 rule 13 CPC. Since 7th and 8th April, 2007 were holidays of 2nd Saturday and Sunday, therefore, if on 9th April, 2007 an application under Order 9 rule 13 CPC has been filed to set aside the ex parte judgment and decree, according to me, the same cannot be said to be barred by time and, therefore, it was not necessary for the appellants to file any separate application to condone the delay.

9. Resultantly, this appeal succeeds and is hereby allowed. The impugned order dated 14.5.2010 is hereby set aside and the application filed under Order 9 rule 13 CPC by the appellants-defendants is hereby allowed. The ex parte judgment and decree dated 14.2.2007 passed in Civil Suit No.473-A/2006 passed by learned XI Additional District Judge, Bhopal (Chain Singh v. Smt. Hari Bai Mehra and others) is hereby set aside. Looking to the facts and circumstances of the case, parties are hereby directed to bear their own costs.

Appeal Allowed.