O R D E R

(23/ 06/2021)

Appellant has filed this Miscellaneous Appeal under Order 43 Rule 1(d) of CPC against the order dated 08.01.2020 passed by 2nd Additional District Judge, Jabalpur in MJC No. 862/2017 whereby learned 2nd Additional District Judge has dismissed the application under Section 5 Limitation Act as well as under Order 9 Rule 13 CPC filed by the appellant.

2. The case of appellant, in short, is that the disputed property bearing flat No. 101 is situated at Amba Apartment, Civil Line, Jabalpur. Respondent/decree holder filed a suit for partition in the year 2010. She alleged that suit property was jointly purchased by respondent/decree holder and her husband Peter Messias. Suit was registered an original as Civil Suit No. 07-A/2011. Thereafter, husband of respondent/decree holder became ex-parte in the said suit and finally the said suit was decided ex-parte on 13.04.2012. The respondent/decree holder and her husband were separated by a decree of divorce passed on 25.02.203, but this fact was suppressed by the respondent/decree holder in her civil suit. Thereafter the respondent/decree holder initiated the execution of decree on 13.04.2012. At that time, the husband of respondent/decree holder was no more. The husband of respondent/decree holder executed a Will in favour of appellant. Hence the name of appellant was inserted in place of Judgment Debtor. Appellant is not a law knowing person and he is bona fide manner believe in the advise given by his counsel. Therefore, he was under a bona fide impression that whatever is to be done the same cannot be done in the execution proceeding. Therefore, he continued to contest the execution proceeding. Thereafter, appellant contacted the another counsel then he was informed that for setting aside, ex-parte decree, he has to file an application under Order 9 Rule 13 of the Code of Civil Procedure. Then appellant filed an application for setting aside the Ex-parte judgment and decree dated 13.04.2012 along with an application for condonation of delay.

3 Respondent/decree holder filed a reply of that application. The learned trial Judge dismissed the application for condonation of delay and simultaneously the application for setting aside the ex-parte judgment and decree dated 13.04.2012 was also dismissed. So learned trial Court failed to see that the common person does not know law. Therefore, he did not know the actual remedy for setting aside the ex-parte judgment and decree. The learned lower Court failed to see the object of the application for condonation of delay. Learned trial Court failed to appreciate that a valuable defence of the party can not be taken away only on the technical grounds. In the present case in hand it is prima facie clear that the suit property was self-acquired property of the husband of the respondent/decree holder, and both the persons were separated by a decree of divorce passed on 25.02.2003. The respondent/decree holder has no legal right over the suit property, but in the absence of proper defense the said fact did not come to the knowledge of the trial Court which passed the judgment and decree dated 13.04.2012. Late Peter Messias has no knowledge about the passing the ex-parte judgment and decree dated 13.04.2012. Therefore, the present appellant has also no knowledge about passing the ex-parte judgment and decree dated 13.04.2012. When the respondent/decree holder started the execution proceeding of ex- parte judgment and decree dated 13.04.2012 which was filed against the Peter Messias, it came to the knowledge of respondent/decree holder that Peter Messias has died and he executed will registered on 22.03.2014 in favour of appellant. The name of present appellant was substituted in place of late Peter Messias and notice of execution was issued to the present appellant.

4. Appellant entered his appearance in the execution proceeding on 06.02.2012 and under the bona-fide advise of his earlier and present counsel, he appeared in the exe