The main legal point established in the judgment is that the period spent for obtaining a certified copy of the ex parte decree cannot be excluded for calculating the limitation under Article 123 of the Limitation Act. The court also clarified that certified copy is not necessary to be filed along with the application under Order 9 Rule 13, and the decision to condone delay depends on the facts of each case.

Arun Mishra, J.

1. The reference has been made by learned Single Judge vide order dated 26-3-2010. Following question has been referred for consideration:

Whether the view of the learned Single Bench of this Court in the matter of Mohan @ Munna Pachauri (supra), that the period spent for obtaining certified copy of ex parte decree cannot be excluded for calculating the limitation under Article 123 of the Limitation Act is the correct view or the earlier contrary view of the Single Bench of this Court in the matter of Shakuntala Singh (supra) is correct?

2. The petitioner has filed an eviction suit against respondents/defendants. In the said Civil Suit, summons were duly served upon the defendants. Defendants appeared before the Trial Court, written statement was also filed. As the rent was not deposited, an application under Section 13(6) of M.P. Accommodation Control Act, 1961 was filed. The Trial Court ultimately ordered striking-off the defence of defendants/tenants. Thereafter, defendants were proceeded ex parte. The Civil Suit was filed in the year 2003. The defendants again appeared in the Civil Suit on 26-8-2006 and filed an application under Order 9 Rule 7 for setting aside the ex parte order. The said application was dismissed as not maintainable as the case was already closed for judgment. On 12- 9-2006, ex parte judgment and decree was passed in favour of the petitioner, even then application was not filed within 30 days to set aside ex parte judgment and decree. It is submitted that on 16-11-2006 application was filed under Order 9 Rule 13, CPC for setting aside exparte decree without filing any application seeking condonation of delay. The plea was taken that the defendants had applied for certified copy of the judgment and decree, which was supplied on 1-11-2006, therefore, the application filed under Order 9 Rule 13, CPC was within the period of limitation. The petitioner filed reply to the application contending that application was barred by limitation.

3. The Trial Court vide order dated 23-4-2007 rejected the application filed under Order 9 Rule 13 of CPC relying upon Article 123 of Limitation Act, which specifically provides that time runs from the date of decree and in case summons were not duly served, from the date the applicant had knowledge of the decree. Aggrieved by the order passed by the Trial Court rejecting application under Order 9 Rule 13, the judgment debtors preferred Miscellaneous Appeals before the District Judge, Jabalpur. The District Judge, Jabalpur opined that application filed under Order 9 Rule 13 was within a period of 30 days excluding the period of copying days and remanded the case to the Trial Court to decide the application on merits vide order dated 15-5-2007, hence Writ Petition Nos. 4994/2008, 4995/2008, 7664/2007 and 4993/2008 were filed before this Court.

4. The writ petitions were decided by common order dated 5-5-2008 by Single Bench of this Court. Single Bench of this Court held that the District Judge has not taken note of Article 123 of Limitation Act and effect of non-filing of the application under Section 5 of the Limitation Act. As summons were duly served, the application under Order 9 Rule 13 was required to be filed within 30 days from the date of decree. Aggrieved by order, Writ Appeal Nos. 704/2008, 705/2008, 706/2008 and 707/2008 were filed by judgment debtors before Division Bench of this Court. The Division Bench vide order dated 28-8-2008 set aside the order passed by Single Bench and directed the Single Bench to decide question of maintainability of writ petition under Article 227 of the Constitution of India or a revision is maintained under Section 115 of CPC. The Division Bench has also observed that in case decision of Shakuntala Singh v. Basant Kumar Thakur and Ors. 2003 (3) MPLJ 414, is not in accordance with law or can be disapproved or can be distinguished then the Single Bench shall refer the matter to the Larger Bench. Thereafter, due to amendme