An application to set aside an ex parte decree must be filed within 30 days from the date of the decree.

1. - This appeal has been filed under Order 43 Rule 1(d), Civil Procedure Code against the order of the learned District Judge, Sri Ganganagar dated October 1, 1993 dismissing the application of the defendant-Appellant moved under Order 9, Rule 13, Civil Procedure Code the facts of the case giving rise to This appeal may be summarised thus.

2. Suit No. 2 of 1979 was filed by the plaintiff-Respondent against the defendant-Appellant for the recovery of about Rs. 17,000/-, summons for settlement of issues were issued for July 28, 1979, despite service of the summons, the defendants did not put their appearance and the case proceeded ex pane against them. Ex parte decree was passed on August 28, 1980. Execution application was moved. They learnt about the ex parte decree when the Notice of the execution proceedings was received by them. Thereafter they moved an application under Order 9, Rule 13, Civil Procedure Code for setting aside the ex parte decree. It was seriously opposed by the plaintiff-Respondent. After hearing the learned Counsel for the parties, the learned District Judge dismissed it by his order under challenge.

3. It has been contended by the learned counsel for the defendant-Appellants that the learned DIstrict Judge, Sri Ganganagar seriously erred to hold that the application moved under Order 9, Rule 13, Civil Procedure Code is time-barred and to dismiss it. He also contended that the defendants could not put their appearance on account of the fault of their Counsel Shri Jagdish Rai Gupta, Advocate, Sri Ganganagar and the District Judge did not take into consideration that no litigant should suffer on account of the fault or mIstake on the part of his Advocate. He further contended that July 13, 1979 was fixed for filing written statement, it was the first date of hearing and, no order was passed to proceed the case ex parte and on This ground also the ex parte decree deserves to be set aside. He lastly contended that the learned District Judge also did not take into consideration that the execution application itself was moved after seven years of the passing of the ex parte decree. He relied upon Savithri Amma Seethamma v. Aratha Karthy and Ors., AIR 1983 Supreme Court 318.

4. There is no substance in the miscellaneous appeal. Admittedly, the defendant-Appellant No. 2 Mohanlal was duly served with the summons as early as on February 20, 1979. He also received the summons issued in the name of the defendant-appellant No. 1 M/s. Naresh Industrial Corporation, Sri Ganganagar as its partner. In both the summons, he had acknowledged the receipt of a copy of the plaint. The summons were issued for the settlement of issues on July 28, 1979. In both the summons a note is given that Written-statement will be filed on July 13, 1979. The case of the defendant-Appellant is that they engaged Shri Jagdish Rai Gupta, Advocate in This case, both the summons were given to him, he handed over the same to his clerk and the latter forgot. and as such appearance could not be put before the District Judge, Sri Ganganagar on the date fixed. The defendant-Appellants have utterly failed to show as to why any of them did not contact their Counsel Shri Jagdishrai Advocate prior to July 13, 1979 (fixed for filing Written-statement) for getting his Written statement drafted. It simply shows careless and negligence on his part. Non appearance on July 28, 1979 before the Court may he due to the forgetfulness of their Counsel Shri Jagdish Rai, Advocate. No explanation has been put forward as to why written statement was not filed on July 13, 1979 which was specifically noted in the summons. The Written statement could be drafted by Shri Jagdish Rai, Advocate only after the defendants had contacted him prior to July 13, 1979. Thus the said excuse put forward by the defendants that the clerk of their counsel Shri Jagdish Rai, Advocate did not remind Shri Jagdish Rai to appear before the trial Court is of no material consequence.

5. There