RUMI KUMARI PHUKAN, J.

1. Heard Mr. I.H. Laskar, learned counsel for the Appellants. Also heard S.P. Roy, learned counsel for the respondents.

2. This appeal under Section 104(1)(i) read with Order 43, Rule 1 (d) of the Code of Civil Procedure, 1908 filed by the Appellants/Proforma Defendants challenging the order dated 18.11.2013, passed by the learned Civil Judge, Nagaon, in Misc Case No. 123/2012, arising out of Title Suit No. 32/2006, illegally dismissing the said Misc Case filed by the Appellant under Section 5 and 14 of the Limitation Act read with Section 151 of the Code of Civil Procedure, 1908, for short, the Code, for condonation of delay in filing the petitioner for setting aside ex-parte order dated 05.10.2007 and final Decree dated 09.07.2010, passed against the appellants/defendants.

3. The contentions so raised by the appellants are that the respondents herein as plaintiffs have filed Title Suit No. 32/2006 in the Court of the learned Civil Judge, Nagaon for declaration of their right, title and interest over a plot of land measuring 32 Bighas 4 Kathas 8 Lechas covered by Dag No. 123, 124, 125, 126, 127, 128, 129, 130, 131 and 133 in Periodic Patta No. 125 of Village - Alisinga, Mouza - Lanka, in the District of Nagaon, Assam. In the said suit, the present appellant No. 1 and the predecessor of the appellant Nos. 2(a) to 2(d) were also made parties as proforma defendant Nos. 2 and 3. It is the pleaded case of the appellants that during the pendency of the trial, it was alleged that summons on behalf of the appellant No. 1 was received by one Mustt. Diluwara Begum and on behalf of Late Tahrun Nessa, predecessor of appellant Nos. 2(a) to 2(d), summons was received by herself but in fact both the Appellant No. 1 and late Tahrun Nessa did not receive any summons in respect of Title Suit No. 32/2006, and subsequently, the Suit was decided ex-parte vide order dated 05.10.2007. the respondents has filed Title Execution Case No. 4/2011 for execution of the final Decree dated 09.17.2010 and the summons was served upon the appellants on 03.05.2011.

4. On being receipt of the summons in Title Execution Case No. 4/2011, on 25.05.2011 the appellants appeared in the said execution case and came to know for the first time about the Title Suit No. 32/2006, ex-parte order dated 05.10.2007 and the decree dated 09.07.2010. Immediately thereafter, the appellants had engaged their counsel in respect of Title Execution Case No. 4/2011 and the learned counsel for the appellants, without the knowledge of the appellants, taken adjournments on consecutive four dates. After coming to know about the adjournments, the appellants being dissatisfied with the inaction of the learned counsel, taken back the briefs and engaged a new counsel.

5. The newly engaged counsel of the appellant filed a petition being M.J. Case No. 144/2011 under Order 21, Rule 99 and 101 read with Section 151 of the Code which was not correct provision of law as provided under the Code for setting aside the ex-parte order, and accordingly, learned Court below vide order dated 10.09.2012 dismissed the said M.J. Case No. 144/2011. The appellants were came to know about the dismissal of the M.J. Case No. 144/2011 only on 19.09.2012 as the engaged counsel of the appellants did not inform the appellants about the dismissal of the M.J. Case No. 144/2011 and on 19.09.2012 itself, the appellants applied for the certified copy of the order dated 19.09.2012 and the same was procured on 24.09.2012.

6. As the learned counsel for the appellants done nothing till 25.11.2012, the appellant handed over the brief to another new counsel for filing proper application and the said counsel took five days to prepare the petition under Order 9, Rule 13 of the Code along with the Misc Case No. 123/2012 under Section 5 and 14 of the Limitation Act read with Section 151 of the Code and the same was filed on 30.11.2012. The learned Court below after hearing both the parties vide order dated 1