The court applied a liberal and judicious approach in setting aside the ex-parte decree, considering the petitioner's age and the advice she received, in line with established principles of liberal approach and condonation of delay.

N.K. Mody, J.

1. Being aggrieved by the order dated 4-8-2003, passed by IInd ADJ, Indore in M.A. No. 18/2001, whereby the order dated 28-4-2001, passed by IInd Civil Judge Class-II, Indore in Misc. Civil Case No. 29/97 was confirmed and the application filed by the petitioner under Order 9, Rule 13, Civil Procedure Code along with section 5 of Limitation Act was dismissed, the present petition has been filed.

2. Short facts of the case are that the respondents No. 1, 2 and 3 were filed the suit against the petitioner, which was numbered as 118/84-A, for which the petitioner was served and did not appear. Therefore, suit proceeded in ex-parte Civil Rev. No. 433 of 2003 decided on 12-8-2005. (Indore) from 1-10-1984. Ultimately on 8-7-1988, an ex-parte decree was passed against the petitioner. On 29-11-1994, an application under Order 9, Rule 13, Civil Procedure Code was filed, wherein it was prayed that the ex-parte decree passed against the petitioner be set aside. The ground for setting aside the decree was taken that the petitioner obtained the permission from the authorities of Municipal Corporation for construction of house and at that time the petitioner was told by the officers of the Municipal Corporation that she is not suppose to contest the case filed by respondents No. 1 to 3.

3. It is alleged that the petitioner is an old lady of 70 years of age and petitioner believed on the advise of the authorities of Municipal Corporation and did not appear before the Court, hence ex-parte decree was passed. It was further alleged that the petitioner got the knowledge of decree when the Nazir of the Court went to the petitioner for the purpose of execution of the decree. The application filed by the petitioner was opposed by the respondent on various grounds and on the ground of limitation as well.

4. Vide order dated 28-4-2001, the Learned Trial Court dismissed the application against which the appeal was filed, which was also dismissed. Learned Counsel for the petitioner submits that no doubt a considerable time has passed when the petitioner applied for setting aside of the ex-parte decree but it is on the advise of the authorities of Municipal Corporation that petitioner was misguided. Learned Counsel for the petitioner placed reliance on a decision in the matter of TV. Balakrishnan v. M. Krishnanmurthy reported in VII (1998) SLT 334, wherein the Hon'ble Supreme Court has held the length of delay is no matter, acceptability of the explanation is the only criterion sometimes delay of the shortest range may be un-condonable due to want of acceptable explanation, whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. In this case, the Hon'ble Apex Court set aside the order passed by the Trial Court on a condition of payment of Rs. 10,000/- as cost.

5. Further reliance was placed on a decision in the matter of Biniya Bai v. Sikandar Khan reported in 1993 MPLJ 738 : 1993 (1) MPJR 89. Wherein Hon'ble Justice R.C. Lahoti, Chief Justice of India, has held that while considering an application filed under section 5 of the Limitation Act approach has to be liberal and judicious and the litigant not to be deprived of decision on merits ordinarily.

6. After taking into consideration all the facts and looking of the age of the petitioner, who is a lady and senior citizen, it appears that the explanation given is believable. In the circumstance the revision petition is allowed. The impugned order dated 4-8-2003, passed in M.A. No. 18/01, by IInd ADJ, Indore and the order dated 28-4-2001, passed by IInd Civil Judge Class - II, Indore in Misc. Civil Case No. 29-97 are set aside subject to payment of cost of Rs. 5,000/-. Consequently, judgment and decree dated 1-10-1984, passed in Civil Suit No. 118/84-A is also set aside. Parties are directed to remain present before the Court below on 29-8-2005. Since the matter is old one, therefore, after giving an opportunity to file the writte