Hon'ble TRIVEDI, J.—The order under challenge in the present appeal is the order dated 4.1.11 passed by the Addl. District Judge No.3, Ajmer (hereinafter referred to as 'the court below) in Civil Misc. Case No. 96/10, whereby the court below has dismissed the application of the appellants-applicants filed under Order IX Rule 13 of CPC alongwith the application filed under Section 5 of the Limitation Act, for setting aside the ex-parte decree dated 2.8.03 passed by the court below in Civil Suit 149/02.

2. The short facts giving rise to the present appeal are that the respondent-plaintiff had filed the suit against the appellants-defendants seeking specific performance of the agreement dated 18.7.01 allegedly executed by the appellants. In the said suit the appellants-defendants did not appear though were duly served and though the advocate named Mr. Mangal Singh Rawat had filed his appearance on their behalf. The court therefore passed an ex-parte decree in favour of the respondent-plaintiff vide the judgment and decree dated 2.8.03. When the said decree was sought be executed by the respondent-plaintiff in the execution proceedings, the notices were issued to the appellants-defendants. The appellants-applicants thus having come to know about the said ex-parte decree, they filed the application in the year 2010 under Order IX Rule 13 of CPC for setting aside the said degree and also filed an application seeking condonation of delay occurred in filing the said application. The court below dismissed both the applications vide the impugned order. It appears that pending this appeal the sale-deed was also got registered in favour of the respondent-plaintiff through the court.

3. It has been sought to be submitted by the learned counsel Mr. Shobhit Tiwari for the appellants that the concerned advocate appearing for the appellants in the suit and also in the execution proceedings had acted against the interest of the appellants by not properly representing the case of the appellants and not informing the appellants about the status of the proceedings. According to him, the appellants should not be made to suffer for the faults of his advocates. He has also relied upon the decision of the Apex Court in case of N. Balakrishanana vs. M. Krishnamurthy (1998) 7 SCC 123 in support of his submission that substantial justice be done by the courts. He further submitted that the appellant had also deposited Rs. 75,000- to show his bonafides as per the order passed by this court on 16.3.11 and that the lenient view be taken in the matter.

4. However, the learned counsel Mr. J.K. Yogi for the respondent submitted that the case of the appellants would not fall under Order IX Rule 13 inasmuch as the appellants were duly served in the suit and had also engaged the advocate to represent them. He also submitted that in the execution proceedings also the appellants had engaged the advocate but thereafter did not choose to challenge the ex-parte decree for about 7 years and therefore, the court below has rightly dismissed the applications of the appellants.

5. Having regard to the submissions made by the learned counsels for the parties and to the impugned order passed by the court below, it clearly transpires that the appellants were duly served in t he suit and had also engaged the lawyer to represent them. Since the said lawyer did not appear, the ex-parte decree came to be passed in the year 2003 in the suit. It further appears that the respondent having filed the execution proceedings, again the notices were served on the appellants, and they had also engaged the advocate named Kailash Singh. According to the appellants, though the said Kailash Singh had pleaded “no instructions”, the executing court allowed the execution proceedings to proceed further and the sale deed was got executed in favour of the respondent through the court on 9.3.11. At this juncture, it is pertinent to note that knowing fully well that the ex-parte decree was passed in the y

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