IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE VIVEK RUSIA rd ON THE 3 OF SEPTEMBER, 2022 MISC. CIVIL CASE No. 1935 of 2021 Between:-

SMT. ANJANA AGRAWAL W/O LATE SHRI DR. B.K. AGRAWAL

331, SAKET NAGAR, INDORE (MADHYA PRADESH)

.....APPLICANT (SHRI BENUDHAR PARIDA, LEARNED COUNSEL FOR THE APPLICANT.)

AND SMT. MALTI DEVI DECEASED THROUGH LRS DINESHCHANDRA S/O JAGDISH PRASAD GOYAL 106, OLD AGRAWAL NAGAR, INDORE (MADHYA PRADESH)

.....RESPONDENTS (SHRI MAHESH AGRAWAL, LEARNED COUNSEL FOR THE RESPONDENT NO.1.)

This application coming on for hearing on this day, the court passed the following:-

ORDER

The present M.C.C. has been filed under Order 41 Rule 21 of the Code of Civil Procedure seeking setting aside of exparte order dated 05.02.2018 passed in F.A No.371/2000 and restoration of First Appeal. As per the prayer clause in the memo of M.C.C., the applicant is seeking a stay of execution proceedings.

This M.C.C. is barred by 1391 days. Hence, an application under section 5 of the Limitation Act has been filed seeking condonation of delay.

2. Respondent has filed the reply to the aforesaid application opposing the prayer for condonation of delay.

3. According to the applicant she did not know of the passing of the aforesaid judgment dated 05.02.2018 passed in the First Appeal, she came to know about the judgment when she was served with the summon of execution proceedings for recovery of Rs.6,45,675/- hence the delay in filing this M.C.C. be condoned.

4. Learned counsel for the respondent submits that the applicant had appeared in the execution proceedings on 04.07.2019 and this M.C.C. was filed on 20.12.2021 hence the delay is not bonafide and is not liable to be condoned. In support of his contention he has placed reliance on the judgment passed by the Apex Court in case of Amalendu Kumar Bera & Others Vs. The State of West Bengal in Civil Appeal No.2677/2013 decided on 22.03.2013 Heard.

5. The respondent being a plaintiff filed the money suit for recovery of Rs.4,25,101/- against the applicant and her husband. Vide judgment and decree dated 08.05.2000 the suit was dismissed and thereafter the First Appeal no.371/2000 was filed. The appellant and her husband appeared in the first appeal by engaging counsel. During pendency of the appeal, the husband passed away and vide order 21.12.2017 his name was deleted because the legal representative i.e. the present applicant was already on record as respondent/the defendant. The first appeal came up for hearing on 18.01.2018 but no one appeared on behalf of the respondent/defendant i.e. present applicant and vide order dated 05.02.2018 the First Appeal was allowed.

6. Order 41 Rule 21 of the Code of Civil Procedure provides re-hearing of an appeal at the instance of the respondent against whom exparte decree was passed. The respondent may apply to the appellate court to re-hear the appeal if he satisfies the court that the notice was not duly served or he was prevented by sufficient cause from appearing when the appeal was called on for hearing, the court who passed the exparte order may hear the First Appeal again. In this case, the present applicant being a respondent in the First Appeal was duly served and thereafter she engaged a counsel to argue on her behalf. At the time of the final hearing counsel of this applicant did not appear and for which no sufficient cause has been shown in this M.C.C. . Since there is no sufficient cause for condonation of delay as well as for restoration of First Appeal. Hence, the application for condonation of delay and present M.C.C. both are hereby dismissed.

No order as to cost.

(VIVEK RUSIA)

JUDGE Ajit/-

AJIT Digitally signed by AJIT KAMALASANAN DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH INDORE, ou=HIGH COURT OF MADHYA PRADESH BENCH INDORE, postalCode=452001, st=Madhya Pradesh, KAMALASA 2.5.4.20=156c9cedca1b74d671db9f220a5e3ed6cba

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