IN THE HIGH COURT AT CALCUTTA ORIGINAL SIDE COMMERCIAL DIVISION Present:

The Hon’ble Justice Krishna Rao GA (COM) No. 3 of 2024 With GA (COM) No. 4 of 2024 In CS No. 105 of 2018 Sushil Kumar More Versus Shaikh Asadur Rahman & Ors.

Mr. Jayanta Kr. Mitra, Sr. Adv. Mr. Krishnaraj Thaker, Sr. Adv.

Ms. Nilanjana Adhya Mr. Asit Kr. De … For the plaintiff/respondent.

Mr. Soumabha Ghosh Ms. Dipika Banu Mr. S. Chakraborty Ms. Bolivia Roy … For the defendant no. 2/petitioner.

Hearing Concluded On : 25.02.2025 Judgment on : 21.03.2025 Krishna Rao, J.:

1. The defendant no.2 has filed an application being G.A. (Com) No.3 of

2024 for condoning the delay of 605 days in preferring an application under Order IX, Rule 13 of the Code of Civil Procedure, 1908. The defendant no. 2 filed another application being G.A. (Com) No. 4 of 2024 praying for recalling/ setting aside Ex-Parte decree dated 22nd November, 2022 passed in C.S. No. 105 of 2018.

2. Mr. Soumabha Ghosh, Learned Counsel representing the defendant no.

2 submits that the defendant no. 2 was at no material point of time aware of the passing of ex parte decree passed by this Court dated 22nd November, 2022. He submits that upon being served with an affidavit- in-opposition to an application under Section 5 of the Limitation Act, 1963 filed in the appeal by the defendant no. 2, it came to know that a writ of summons along with the copy of the plaint was purportedly served upon the defendants on 8th July, 2019.

3. Mr. Ghosh submits that the service report specifically states that neither postal acknowledgement receipt nor undelivered packets for the defendant nos. 1 and 2 was received. He submits that the report relied upon the tracking report which shows that writ of summons along with the copy of the plaint was allegedly served upon the defendant no. 2 on 8th July, 2019. He submits that there is no conclusive proof that the defendant no. 2 received the plaint or writ of summons. He submits that the defendant no. 2 came to know about the dispute only on 20th June, 2023 i.e. when the defendant no. 2 has engaged an Advocate and sought a copy of the plaint and the petition from the Advocates of the plaintiff.

4. Mr. Ghosh submits that the defendant no. 2 resides in a foreign country, having no other option, he has requested a copy of the plaint from the Learned Advocate appearing for the plaintiff. He submits that the defendant no. 2 has never any information about the suit filed before this Court. He submits that the communication which was issued after service of the decree and the execution case which was enclosed in the affidavit-in-opposition filed by the decree holder and upon receipt of such communication, the defendant no. 2 carried out searches at the office in order to find out whether any such copy of the plaint along with the copy of writ of summons was served upon the defendant no. 2 but even after the search no document was found in the office of the defendant no. 2.

5. Mr. Ghosh submits that the defendant no. 2 has approached its Advocate in Calcutta for taking necessary steps. He submits that the defendant no.2 on receipt of execution application came to know about the particulars of the suit and the decree passed by this Court. He submits that on receipt of Vakalatnama on 21st September, 2023, the Learned Counsel for the defendant no.2 applied for certified copy of the decree and on 3rd October, 2023, the defendant no. 2 got certified copy of decree. On receipt of the same, the defendant no.2 has preferred an appeal on 11th January, 2024 along with an application for stay as well as for condoning the delay in preferring an appeal.

6. Mr. Ghosh submits that when the appeal was taken up for hearing, the Hon’ble Appellate Court was of the view that instead of an appeal, the appropriate remedy would be to prefer an application under Order IX, Rule 13 of the Code of Civil Procedure, 1908 before this Court for recalling and setting aside of the ex-parte decree against the defendant no.2. He