Diligence in defense must be demonstrated; lack of sufficient explanation for delay leads to dismissal of appeal.

1. Leave is granted to the learned advocate - on - record of the appellant to rectify the defect in the memorandum of appeal in terms of the report of the Stamp Reporter.

2. The money suit was decreed ex parte on 31st March, 2008. This is not a case where the defendant applied for setting aside of the ex parte decree on the ground of non - service of summons. Admittedly, summons was served upon the defendant. The defendant appeared in the suit and he engaged his lawyer for contesting the said suit. Ultimately, due to non - appearance of the defendant in the said suit, the suit was decreed ex parte against the defendant / appellant.

3. It is only when notice relating to the execution case was served upon the defendant, the defendant came forward with an application for setting aside for ex parte decree. Such application was filed on 8th July, 2009. Since such application was filed beyond the prescribed period of limitation, the appellant filed an application under S.5 of the Limitation Act for condonation of delay.

4. The learned Trial Judge refused to condone the delay in filing the said application as the explanation for such long delay which was given by the appellant in his application under S.5 of the Limitation Act , was not at all convincing. Consequently, the application under O.9 R.13 of the Code of Civil Procedure was also rejected.

5. Hence, the instant appeal has been filed.

6. Let us now consider as to whether there is any merit in this instant appeal in the facts of the instant case.

7. In this regard we have considered the pleading made out by the defendant - appellant in his application under S.5 of the Limitation Act , the appellant has not explained the reason which prevented the appellant from appearing before this court for defending the said suit.

8. Mere engagement of the lawyer is not enough for a litigant to show his diligence in defending the suit.

9. It is not a case where the appellant has pleaded that due to wrong communication of the date fixed for hearing of the suit, by his lawyer, he could not appear before the court below. The reason, which prevented him from appearing before the court on the date of hearing, remains unexplained.

10. Under such circumstances, the learned trial judge rejected the appellant's application under S.5 of the Limitation Act . We, sitting in this jurisdiction, do not find any justifiable reason to upset such finding of the learned trial judge. We thus decline to admit this appeal for hearing.

11. The appeal thus stands dismissed.

12. Since the appeal is disposed of in the manner as aforesaid, no further order need be passed on the injunction application.

13. The application for injunction being CAN 1138 of 2017 is thus, deemed to be disposed of.

14. Urgent Photostat certified copy of this order, if applied for, be supplied to the Learned advocates for the parties immediately.