Knowledge of the decree as outlined under Article 123 of the Limitation Act is critical for setting aside an ex parte order.

1. Plaintiffs namely Smt. Kanti Mishra, Sameer Mishra, Durgesh Mishra and Smt. Seema Shukla instituted a suit for eviction against defendants before the trial Court, in which present defendant / judgment debtor No. 6 - Salim Memon appeared and engaged the counsel to contest the suit, the said counsel was regularly appearing before the trial Court on behalf of petitioner and on 26.11.2009 he failed to appear before the trial Court, thereafter, the ex parte judgment & decree was passed by the trial Court on 31.03.2010 in favour of the plaintiffs.

2. Defendant No. 6 - Salim Memon / petitioner came to know about the ex parte judgment & decree passed by the trial Court only on 18.02.2012 and immediately thereafter he engaged another counsel and as per his instructions and after obtaining certified copy of the relevant documents, he filed an application under O.9 R.13 read with S.151 CPC supported by affidavit along with application for setting aside ex parte order and also filed an application under S.5 of the Limitation Act on 12.03.2012 for condoning the delay in filing the same.

3. Respondents / plaintiffs opposed the said applications stating that notice of execution of ex parte decree was received by 3 defendant No. 6 on 05.08.2011 and he appeared through his counsel on 12.08.2011 and thereafter, application for setting aside ex parte judgment & decree alongwith application for condonation of delay of seven months in filing the said application has been filed on 12.03.2012, which is deliberate and intentional and malifide and it could not be condoned as no sufficient cause has been shown by defendant No.6 / petitioner for delay in filing the application for setting aside ex parte order.

4. The trial Court made an enquiry on the sufficiency of cause shown in the application for condonation of delay as well as application under O.9 R.13 of the CPC and, thereafter, by its order dated 26.02.2016 reached to a conclusion that the counsel engaged by the defendant / petitioner failed to appear before the trial Court and he did not inform the defendant before deciding not to appear before the trial Court on behalf of defendant No.6 / petitioner and also recorded a finding that delay of seven months has not been explained properly by defendant No. 6 / petitioner as application for setting aside ex parte order ought to have been preferred within 30 days from the date of knowledge of the ex parte decree.

5. Petitioner / defendant preferred Misc. Appeal under O.43 R.1 (d) of the CPC there - against before the First Appellate Court. The First Appellate Court by its impugned order dated 29.08.2016 affirmed the finding recorded by the trial Court and dismissed the appeal. Questioning that order, this writ petition has been filed by the petitioner / defendant No. 6.

6. Mr. B.P. Sharma, learned counsel appearing for the petitioner would submit that both the courts below have committed legal error in rejecting the petitioner's application filed under O.9 R.13 of the CPC along with application for condonation of delay after having held that counsel engaged by the petitioner / defendant did not inform him before deciding not to appear before the trial Court, by which, defendant was proceeded ex parte and ex parte order was passed against him. He would further submit that defendant came to the knowledge of the decree only on 18.2.2012 and within one month from the date of knowledge of ex parte decree i.e. on 12.03.2012, he preferred application under O.9 R.13 of the CPC along with application for condonation of delay as provided in Art.123 of the Limitation Act, 1963 . He placed reliance upon the judgment of Supre