IMPORTANT POINT
Setting aside ex-parte decree – Real test for adjudication of a petition under Order IX Rule 13 CPC is whether litigant upon learning about ex-parte decree takes immediate steps in filing application seeking setting aside of ex-parte decree.

JUDGMENT

K.R. Mohapatra, J.—Order dated 5th December, 2019 (Annexure-11) passed by learned Senior Civil Judge, Bhubaneswar in CMA No.31 of 2018 filed under Order IX Rule 13 CPC is under challenge in this CMP.

2. This CMP finds its genesis from CS No.1783 of 2011 filed by the Petitioner for declaration of his right, title, interest and possession over the suit schedule land as well as for a decree to declare that Defendant No.1 has no authority to alienate the suit land and also to declare that the two registered sale deeds bearing Nos.3530 and 3533 of 2000 are not binding on the Plaintiff as well as proforma Defendant Nos. 4 and 5. A relief of permanent injunction against Defendant Nos. 1 to 3 was also sought for. The suit schedule land pertains to Plot No.133 to an extent of Ac.0.177 decimals and Plot No.134 to an extent of Ac.150 decimals under Khata No.291 situated in mouza Jharapada. The Opposite Party Nos.1 and 2 herein are Defendant Nos.2 and 3 in the suit. Defendant No.4 appeared on 4th December, 2015 and filed his written statement alone in the suit. Defendant No. 5(a) on appearance filed a memo and adopted the written statement of Defendant No.4. The contesting Opposite Parties, namely, Defendant Nos. 2 and 3 appeared on 20th March, 2012 and filed a petition for time to file their written statement. However, in spite of several adjournments they did not file written statement. Order dated 20th June, 2012 of the suit reveals that Defendant Nos. 2 and 3 on their appearance through Sri Gyanaranjan Mohapatra, Advocate filed a petition for adjournment to file written statement which was rejected. On 6th November, 2013 although Defendant Nos.2 and 3 filed hazira but they neither filed their written statement nor prayed for time for filing of the same. Subsequently on 24th November, 2016 issues were settled. On 27th March, 2017, the Plaintiff filed evidence in affidavit. On 4th July, 2017, when the suit was called on for hearing, Defendant Nos. 2 and 3 were absent on call and were set ex parte. Thus, PW-1 was examined and exhibits 1 to 9 were admitted into evidence. In due course, the case was posted to 15th July, 2017 for argument. On that date, Defendant Nos.1 to 3 also filed a petition for adjournment for which the suit was adjourned to 17th July, 2017, on which date, the argument was heard and the judgment was pronounced on 18th July, 2017. The decree was drawn up subsequently and was signed on 27th July, 2017.

2.1 Subsequently on 13th March, 2018, Defendant Nos.2 and 3 filed CMA No.31 of 2018 under Order IX Rule 13 CPC to set aside the ex parte decree along with an application under Section 5 of the Limitation Act to condone the delay in filing the CMA. In the CMA, the Defendant Nos. 2 and 3 took a stand that they along with Defendant No.1 entered appearance in the suit on 6th November, 2013 through their counsel and sought for adjournment for filing written statement. When the suit was posted to 24th November, 2016 they could not take proper step as the Clerk in-charge had met with an accident and sustained a fracture of femur. He resumed his work only in the month of August, 2017. Their Advocate, namely, Sri Gyanaranjan Mohapatra was also suffering from ligament fracture for which the Defendant Nos. 2 and 3 were kept in dark about the progress of the suit and were set ex parte. Consequently, the ex parte judgment and decree was passed. It was specifically pleaded in the said CMA that on 4th January, 2018, the Defendant Nos. 2 and 3 learnt about the decree and requested the Advocate’s Clerk to obtain the copy of the judgment. Accordingly an application for obtaining the certified copy of the judgment and decree was made on 8th January, 2018, which was made available to them on 17th February, 2018. Within thirty days thereafter, the petition under Order IX Rule 13 CPC (CMA No.31 of 2018) was filed. The Plaintiff/Petitioner who was the Opposite Party No.1 in the said CMA contested the case by filing objection stating tha