The absence of diligence in tracking case status defeats applications for setting aside ex parte judgments.

IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE G. S. AHLUWALIA th ON THE 25 OF AUGUST, 2025 CIVIL REVISION No. 117 of 2011 SMT.SHYAMKUMARI Versus DEEPAK KUMAR Appearance:

Shri Prashant Sharma, Advocate for the applicant.

None for the respodnent.

ORDER The Civil Revision, under Section 115 of CPC, has been filed against the order dated 14-12-2009 passed by III Additional District Judge, Vidisha, in Misc. Civil Appeal No. 11A/2009, as well as, order dated 15-5-2009 passed by Civil Judge, Class-I, Vidisha, in MJC No. 5/2005, by which an application filed by applicant under Order 9 Rule 13 CPC for setting aside ex parte decree has been rejected.

2. It is the case of the applicant that the respondent filed a suit for recovery of Rs.41,000. The applicant, after receiving notice, appeared before the trial Court. On 18-6-2003, the presiding officer was on leave and accordingly the case was adjourned for 4-8-2003. On 4-8-2003, the presiding officer was transferred and therefore the court was vacant, and accordingly the case was fixed for 2-12-2003. In the meanwhile, the case was transferred from Kurwai to Vidisha and no notice of such transfer was given to the applicant, and accordingly the trial court at Vidisha proceeded ex parte Signature Not Verified Signed by: ANAND against the applicant and ultimately passed an ex parte judgment and decree. Thereafter, the applicant filed an application under Order 9 Rule 13 CPC which was rejected by the trial court and the appeal has also been dismissed by the appellate court.

3. Challenging the orders passed by the Courts below, it is submitted by counsel for the applicant that the applicant was vigilantly appearing before the trial Court at Kurwai. On 4-8-2003 the case was adjourned because the presiding Officer was transferred and the court was lying vacant, and accordingly the case was fixed for 2-12-2003. However, in the meanwhile, the case was transferred to Vidisha without any information to the applicant. Even the Court at Vidisha did not issue notice to the applicant after the case was transferred to its Court, and accordingly the applicant was not aware of the fact that the case has been transferred to Vidisha, which resulted in passing of an ex parte decree. Thus, it is submitted that the applicant has made out a sufficient ground for setting aside the ex parte judgment and decree passed by the trial Court. 4. Heard the learned counsel for the applicant.

5. Section 17 of the Limitation Act reads as such:

17. Effect of fraud or mistake.- (1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act,—

(a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or (b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid; or (c) the suit or application is for relief from the consequences of a mistake; or (d) where any document necessary to establish the right of the plaintiff or applicant has been Signature Not Verified Signed by: ANAND fraudulently concealed from him, the period of limitation shall not begin to run until plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production:

Provided that nothing in this section shall enable any suit to be instituted or application to be made to recover or enforce any charge against, or set aside any transaction affecting, any property which-

(i) in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know, or have reason to believe, that any fraud had been commi