An application under Order 9 Rule 7 of the CPC to set aside an ex-parte order is not barred by the Limitation Act and can be filed at any time before the delivery of the judgment in the suit.

O R D E R

This Civil Revision Petition is filed challenging the order passed by the Court below dismissing the application filed by the petitioner under Order 9 Rule 7 of CPC, seeking to set aside the ex-parte order passed against him dated 12.06.2008.

2. The respondents 1 and 2 filed a suit seeking partition of 2/9^th share in the suit property. The petitioner who was arrayed as first defendant in the suit was set ex-parte on 12.06.2008. When the suit was posted for arguments, the petitioner herein filed the instant application seeking to set aside the ex-parte order passed against him. In the affidavit filed in support of the application, it was averred by him that on 12.06.2008, he was suffering from high fever and bed ridden. Therefore, he failed to contact his counsel and file his vakalat. The said application was opposed by the 3^rd respondent on the ground that the application filed by the petitioner seeking to set aside the ex-parte order after 13 years is barred by limitation and the reason assigned by him for his failure to appear before the Court was not proved.

3. The application was dismissed by the Court below mainly on the ground that the petition filed to set aside the ex-parte order after 13 years is barred by limitation by applying Article 137 of the Limitation Act. The learned Judge relied on the judgment of this Court in Visalakshi Vs. Umapathy reported in 2015 (5) CTC 67.

4. The learned counsel appearing for the petitioner submitted that the law laid down in Visalakshi Vs. Umapathy reported in 2015 (5) CTC 67, was later held to be not good law in Rajasekar Vs. Govindammal (Late) 1.Dhavamani reported in 2020 (6) CTC 724. The learned counsel further submitted that there is no limitation for filing petition to set aside the ex-parte decree and the same can be filed at any time before delivery of the judgment.

5. The learned counsel appearing for the 3^rd respondent vehemently contended that the petitioner failed to give any acceptable reason for his failure to appear for nearly 13 years and therefore, the Court below is justified in dismissing the application.

6. This Court in Rajasekar Vs. Govindammal (Late) 1.Dhavamani reported in 2020 (6) CTC 724 held that Article 137 of Limitation Act will not be applied to the application under Order 9 Rule 7 of CPC and the said application can be filed at any time before the delivery of judgment in the suit. The relevant observation of this Court, in this regard reads as follows:

I therefore, find that those judgments, viz., the judgment in Visalakshi Vs. Umapathy reported in 2015 (5) CTC 67, judgment in G.Krishnasamy Vs. G.Seenivasan and another, CRP (MD).No.2819 of 2018 (PD), dated 04.06.2019, judgment in Ramdoss Vs. Mohan and others, CRP (PD) No.2412 of 2016, dated 23.08.2016. cannot be held to be good law, inasmuch as, they are in conflict with the decisions of the Hon'ble Supreme Court in Sangram Singh Vs. Election Tribunal, Kotah and others , AIR 1955 SC 425 and Arjun Singh Vs. Mohindra Kumar and others , AIT 1964 SC 993. For the foregoing reasons, I conclude that Article 137 of the Limitation Act, does not apply to an Application under Order 9, Rule 7 of the Code of Civil Procedure and the same can be filed at any time before the judgment is delivered in the suit or proceedings.

7. Since the law laid down by this Court in Rajasekar Vs. Govindammal (Late) 1.Dhavamani reported in 2020 (6) CTC 724 is based on earlier Supreme Court judgment, I prefer to follow the same. Accordingly, I hold that there is no limitation for filing application under Order 9 Rule 7 of CPC