JUDGMENT :

Prasanta Kumar Deka, J.

1. Heard Mr. B.D. Goswami, the learned counsel for the petitioners. Also heard Mr. S.C. Keyal, the learned counsel for the respondent No. 3.

2. The petitioners are aggrieved by the impugned order dated 14.10.2020 passed in Misc.(J) Case No. 103/2020 arising out of Title Suit No. 135/2018 by the learned Civil Judge No. 1, Kamrup (M) at Guwahati. By the said impugned order dated 14.10.2020, the ex-parte judgment and decree dated 23.12.2019 and corrected on 02.01.2020 passed in Title Suit No. 135/2018 was set aside restoring the suit back to file.

3. The petitioners as plaintiffs filed. Title Suit No. 135/2018 in the Court of learned Civil Judge No. 1, Kamrup (M) at Guwahati for declaration of right, title and interest and for recovery of possession of the suit land measuring about 3 Kathas 1.4 Lechas covered by Dag No. 702 of KP Patta No. 296 of village Dispur under Mouza-Beltola in the district of Kamrup (M). Initially, the present respondent Nos. 1 and 2 were impleaded as the defendant Nos. 1 and 2. However, the said defendant respondent Nos. 1 and 2 denied their possession over the suit land after which the learned court below on the basis of a petition of the petitioners issued an Amin Commission vide order dated 20.05.2019, In the report dated 03.08.2019 of the Amin Commission it was recorded that one Jagadish Ch. Das, the present respondent No. 3 was possessing the suit land. The petitioners as the plaintiffs impleaded the defendant respondent No. 3 and plaint was amended for recovery of khas possession of the entire suit land under possession of the defendant respondent No. 3. Summons was served on 30.10.2019 and received by his own signature. As the respondent No. 3 did not appear, the suit proceeded ex-parte against him vide order dated 11.11.2019. The suit was heard ex parte against the respondent No. 3 and judgment was delivered on 23.10.2019. The said judgment was corrected by the learned court below on 02.01.2020 on the basis of an application filed under Section 152 of the CPC by the plaintiffs petitioners. The said decree was put to execution in Title Execution Case No. 04/2020 and on 25.2.2020, the Civil Nazir with the assistance of other staff and police personnel executed the decree by handing over possession of 2 Kathas 4 Lechas of land out of the total suit land to the petitioners plaintiffs. Possession of 17.4 Lechas of land could not be recovered on 25.2.2020 as there was a building standing thereon.

4. The defendant respondent No. 3 filed a petition under Order DC Rule 13 of the CPC which was registered as Misc. (J) Case No. 103/2020 seeking for setting aside the judgment and decree dated 02.01.2020 passed in the said Title Suit No. 135/2018. Another application was filed in Execution Case No. 4/2020 with a prayer for stay of further execution of the said ex-parte decree. The said petition was registered as Misc. (J) Case No. 104/2020. The learned executing court stayed further proceeding of the execution and issued notice to the petitioners in Misc. (J) Case No. 103/2020. The petitioners filed their written objections. The learned court below vide the impugned order dated 14.10.2020 set aside the judgment and decree and restored the Title Suit No. 135/2018 for further trial.

5. Mr. Goswami, the learned counsel for the petitioners assailed the impugned order on the following grounds:-

(i) The defendant respondent No. 3 received the summons duly on 30.10.2019 but willfully did not appear in the court and after the partial completion of the execution of the decree filed a petition under Order IX Rule 13 of the CPC for setting aside the decree. There was delay of 116 days in filing the said petition inasmuch as the petition was filed on 26.02.2020. Though summons was duly served on 30.10.2019 but the learned court below did not consider the said aspect of delay. Without there being any application seeking for condonation of delay by the respondent No. 3, the learned court below pa