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ordered and the defendant was proceeded ex parte on 18.09.2007. A(cid:24)er

recording ex parte evidence, the suit was decreed vide judgment and decree

dated 19.09.2012.

3. Banwari Lal expired on 29.11.2012. The respondent, his

grandson, claimed succession to the suit property on the basis of a registered

Will dated 06.05.2012, which was subsequently mutated in his favour on

10.06.2013 vide Muta,on No.4349 (Annexure P-7).

4. Respondent moved an applica,on under Order IX Rule 13 CPC

on 04.03.2014 for se6ng aside exparte judgment and decree dated

19.09.2012 (Annexure P-3). According to the respondent, he first acquired

knowledge of the ex parte decree on 03.03.2014, when he obtained a copy of

the jamabandi from the revenue authori,es. He then immediately filed the

applica,on under Order IX Rule 13 CPC along with an applica,on under

Sec,on 5 of the Limita,on Act.

5. Pe,,oners contested the applica,on by contending that

defendant Banwari was duly served as per law; that applica,on under Order

IX Rule 13 CPC was hopelessly barred by limita,on; that the respondent had

construc,ve knowledge of the decree at least on 10.06.2013, when muta,on

of the Will was sanc,oned; and that the respondent was not a party to the

suit and was a stranger thereto and so, had no locus standi to move an

applica,on under Order IX Rule 13 CPC.

6. Vide order dated 21.04.2014, the Trial Court condoned the

delay, observing that the applica,on had been filed within limita,on from

the date of knowledge. The said order was never set aside.

7. However, a(cid:24)er framing issues and recording evidence of both

sides, the Trial Court dismissed the applica,on under Order IX Rule 13 CPC

vide order dated 14.02.2024 (Annexure P-1), holding the applica,on to be

barred by limita,on and not maintainable at the instance of the respondent.

8. Not sa,sfied with the order of the trial court, respondent

approached the appellate court. The appeal filed by the respondent was

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allowed by the learned Addi,onal District Judge, Gurgaon vide the impugned

judgment dated 29.11.2025 (Annexure P-2), which has given rise to the

present revision.

9. Conten(cid:6)ons : Learned senior counsel for the pe,,oners submits:

(i) The defendant was duly served through refusal and subs,tuted

service, and therefore the ex parte proceedings were legal. Reference is also

made to proviso to Order IX Rule 13 CPC to contend that even if there was

irregularity of service, that cannot be a ground to set aside ex-parte decree.

(ii) The applica,on under Order IX Rule 13 CPC was hopelessly

barred by limita,on, as defendant was duly served; the decree was passed on

19.09.2012 and muta,on in favour of the plain,ffs based on the decree was

sanc,oned on 18.01.2013.

(iii) The respondent had construc,ve knowledge of the decree at

least on 10.06.2013, when muta,on of the Will was sanc,oned, and

therefore the plea of knowledge on 03.03.2014 is false.

(iv) The respondent was not a party to the suit and was a stranger

thereto; hence, he had no locus standi to move an applica,on under Order IX

Rule 13 CPC.

(v) The appellate court exceeded its jurisdic,on and re-appreciated

evidence like a first court of appeal, warran,ng interference under Ar,cle

227.

10. Per contra, learned senior counsel for the respondent contends:

(i) The service of summons on the defendant Banwari was contrary

to Order V Rules 9 and 21 of CPC, as the defendant was residing outside the

territorial jurisdic,on of the Trial Court.

(ii) The delay stood already condoned by a judicial order dated

21.04.2014, which aDained finality; hence, the Trial Court had no jurisdic,on

to re-open the issue.

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(iii) Knowledge of muta,on proceedings cannot be equated with

knowledge of an ex parte civil decree, especially