Form No.J(2)

IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction Appellate Side Present : The Hon’ble Mr. Justice Sabyasachi Bhattacharyya &

The Hon’ble Mr. Justice Uday Kumar FMA 722 of 2024 With CAN 1 of 2024 Himangshu Saha -vs-

Birendra Kumar Bhowmik (Deceased)

represented by Smt. Pabitra Bhowmik and Ors.

For the appellant : Mr. Partha Pratim Roy, Mr. Manik Lal Poddar.

For the respondent No. 1 (a) : Mr. Debasish Roy, Sr. Adv.

Mr. Somnath Maiti, Mr. Soumyanil Maiti.

Heard on : March 5, 2025. Judgment on : March 5, 2025.

Sabyasachi Bhattacharyya , J .:

1. Heard learned Counsel for the parties.

2. The present appeal has been preferred against an order whereby an application for condonation of delay in filing an application for restoration of a suit under Order IX Rule 13 of the Code of Civil Procedure, filed by the present appellant, was dismissed, consequentially dismissing the application under Order IX Rule 13 as well.

3. Learned Counsel for the appellant contends that the appellant had been duly taking steps in the suit. It is submitted that by an Order dated August 8, 2012, at the juncture when the ex parte decree was sought to be executed, the learned Trial Judge passed an order fixing a future date for hearing of an application filed by the defendant No. 5/present appellant on September 13, 2011, while the suit was pending. It is submitted that during pendency of the suit, such application dated September 13, 2011 was filed by the present appellant for taking the suit off the ex parte board and for being given a chance to participate in the suit. However, without disposing of such application, an ex parte decree was passed in the suit and, as such, the very disposal of the suit by such ex-parte decree is vitiated in law.

4. Learned Counsel further submits that in view of the Order dated August 8, 2012, the appellant was under the obvious impression that the learned Trial Judge would revisit the application dated September 13, 2011 whereby the appellant has sought taking the suit off the ex parte Board, in the process setting aside the ex parte decree and/or recalling the said ex parte decree as well. Such impression was dispelled only on July 16, 2015, when a revisional application filed by the respondent against the Order dated August 8, 2012 was allowed.

5. Immediately thereafter, steps were taken and on September 4, 2015, the application under Order IX Rule 13 along with the connected application for condonation of delay under Section

5 of the Limitation Act were filed.

6. Hence, it is submitted that there was no fault on the part of the

appellant in the delay occasioned in preferring the application

for setting aside the ex parte decree, as the cause of action for

filing the application under Order IX Rule 13 of the Code riprened, insofar as the defendant No. 5/appellant is concerned, on July 16, 2015, only upon the revisional court setting aside the Order dated August 8, 2012.

7. Learned Counsel appearing for the appellant further insinuates that the suit, against the ex parte decree of which the Order IX Rule 13 application was filed, itself was not maintainable in view of the bar under Order II Rule 2 of the Code of Civil Procedure, since a suit for specific performance of the self- same contract as sought in the second suit was already pending at the juncture when the second and last suit was filed. Thus, since the suit itself was barred by law, the defendant No. 5/appellant had a fair chance of having the said suit dismissed on merit, which also ought to be considered as one of the ingredients of consideration under Section 5 of the Limitation Act.

8. Learned Counsel for the decree holder/respondent No. 1

vehemently opposes the contentions of the appellant. It is

submitted that even on September 13, 2011, when the

application was filed by the defendant No. 5/appellant for taking the suit off the ex parte Board, December 1, 2011 was fixed as the next date of hearing by the court, in the presence of the learned Advocate for th