Harlal and Others vs Shankar and Others

Arun Bhansali, J.—An averments has been made in the application u/s 5 of the Limitation Act that after passing of the impugned ex-parte decree by the first appellate court, the application under Order IX, Rule 13 CPC r/w. Order XLVII, Rule 1 CPC r/w Section 151 CPC has been filed before the appellate court.

It is submitted by learned counsel for the appellants that the application is still pending.

In view of the fact that in the present appeal the issue raised inter-alia pertains to passing of ex-parte decree and the same is barred by 2108 days, it would be appropriate for the appellants to pursue the application filed under Order IX, Rule 13 CPC r/w Order XLVII, Rule 1 CPC before the appellate court as in view of Bhanu Kumar Jain v. Archana Kumar: AIR 2005 SC 626 (para 38), the appeal even otherwise is not maintainable.

In that view of the matter, the present appeal is dismissed with liberty to the appellants to pursue the proceedings under Order IX, Rule 13 CPC r/w Order XLVII, Rule 1 CPC.