JUDGMENT

1. This matter is taken up through hybrid mode.

2. Judgment dated 20th March, 2024 (Annexure-6) passed in F.A.O. No.01 of 2023 is under challenge in this CMP, whereby learned Additional District Judge, Rairangpur allowed the appeal and set aside the judgment dated 1st May, 2023 (Annexure-4) passed by learned Civil Judge (Senior Division), Rairangpur in C.M.A. No.04 of 2016 (arising out of C.S. No.143 of 2006), dismissing an application under Order IX Rule 13 CPC.

3. Mr. Mishra, learned counsel submits that the Plaintiff is the Petitioner in this CMP. The suit was filed for declaration of Reason: Authentication Location: High Court of Orissa, Cuttack // 2 //

Date: 07-Nov-2024 12:33:12 right, title, interest and confirmation of possession as well as for permanent injunction against the Defendants. Defendant No.1- Opposite Party No.1 upon receipt of summon in the suit, did not appear, for which he was set ex parte on 9th April, 2007. Subsequently, the suit was decreed ex parte vide judgment dated 25th April, 2008 (Annexure-2) declaring that the Plaintiff is the rightful owner in possession of the suit land. The Defendants were also permanently injuncted from interfering with the peaceful possession of the Plaintiff over the suit land. After a lapse of eight years, the Defendant No.1 filed CMA No.04 of 2016 under Order IX Rule 13 CPC for setting aside the ex parte decree against him and to contest the suit. The said application was rejected vide order under Annexure-4. Assailing the same, Defendant No.1 filed F.A.O. No.01 of 2023, which was allowed vide judgment under Annexure-6 setting aside the order passed under Annexure-4. Hence, this CMP has been filed.

4. Mr. Mishra, learned counsel for the Plaintiff-Petitioner submits that in the CMA petition, the Defendant No.1 has categorically stated at Paragraph-3 that after the ex parte decree was passed in the suit, Execution Case No.11 of 2015 was filed. After receipt of the notice in the Execution Case, Defendant No.1 applied for the certified copies of the plaint, judgment, decree and summon in C.S. No.143 of 2006 through Sri Durga Murmu, Advocate’s Clerk on 27th December, 2015. Certified copies were supplied to Sri Murmu on 8th January, 2016. Since 9th January, 2016 was a 2nd Saturday and 10th January, 2016 was Reason: Authentication Location: High Court of Orissa, Cuttack // 3 //

Date: 07-Nov-2024 12:33:12 a Sunday, said Sri Murmu informed the Defendant No.1 regarding receipt of the certified copies on 11th January, 2016. Defendant No.1 further stated that he came to Rairangpur on 13th January, 2016, when he received the certified copies from Sri Murmu. The Defendant No.1 had knowledge of the institution as well as the decree passed in the suit since 8th January, 2016, when his agent namely, Sri Durga Murmu received the certified copies. Learned appellate Court on a misconception held that Defendant No.1 came to know about the institution of the suit and decree passed therein on 13th January, 2016 and thus opined the petition under Order IX Rule 13 CPC to be in time.

5. It is further submitted that the Plaintiff and Defendant Nos.1 and 2 were residing under one roof. Defendant No.2 received summon on behalf of Defendant No.1. Subsequently an affidavit was filed by the Plaintiff to treat the service of summon on Defendant No.1 to be sufficient. Accepting the same, learned trial Court proceeded with the matter. Since the Defendant No.1 upon receipt of the summons in the suit did not appear, he was set ex parte on 9th April, 2007 and ex parte judgment was passed on 25th April, 2008. Thus, Defendant No.1 had knowledge of institution of the suit as well as the decree passed therein all throughout. Learned trial Court considering the same held that the petition under Order IX Rule 13 CPC was devoid of any merit and dismissed the same. These facts could not be appreciated in their proper perspective by learned appellate Court, which has resulted in the impugned judgment. Hence, the Re